48 N.W. 1 (Minn. 1891), Hefferen v. Northern Pacific Railroad Company

Citation:48 N.W. 1, 45 Minn. 471
Opinion Judge:Dickinson, J.
Party Name:Patrick Hefferen v. Northern Pacific Railroad Company. Thomas Hefferen, an Infant, by his Guardian, v. Same
Attorney:John C. Bullitt, Jr., for appellant. W. H. Adams and J. B. Douglas, for respondent.
Case Date:March 02, 1891
Court:Supreme Court of Minnesota
 
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48 N.W. 1 (Minn. 1891)

45 Minn. 471

Patrick Hefferen

v.

Northern Pacific Railroad Company.

Thomas Hefferen, an Infant, by his Guardian,

v.

Same

Supreme Court of Minnesota

March 2, 1891

A motion for a reargument of this case was denied April 9, 1891.

Actions brought in the district court for Crow Wing county and tried before Mills, J., (acting for the judge of the 15th district.) In the first case plaintiff had a verdict of $ 3,000, and, in the second, of $ 7,000. In each case the defendant appeals from the judgment.

Judgments reversed, and new trials granted.

John C. Bullitt, Jr., for appellant.

W. H. Adams and J. B. Douglas, for respondent.

OPINION

Dickinson, J.

These two actions are for the recovery by a father (Patrick) and by his minor son (Thomas) of damages for an injury suffered by the son while engaged as a servant of the defendant in [45 Minn. 472] its shops at Brainerd. The father seeks to recover for loss of service of his son and for expenses to which he was subjected by reason of the injury; the son, for the personal injury to himself. The facts in the two cases are substantially the same, and both may be considered together. When the accident occurred (December, 1886) Thomas was 17 years old. He had been for about two years and a half at work for the defendant, -- at first in the building of the shops, and after that in the shops. His work in the shops had been of a somewhat miscellaneous character, including the cleaning of machinery, working in blacksmith and boiler shops, operating a steam-hammer, pointing bolts, heating rivets, and, as he says, doing whatever he was directed to do. His father was a machinist in the same shop. On the occasion under consideration the foreman had ordered Thomas to go to the engine-house to work with one Torkleson cutting off the heads of rivets on the tank of a locomotive. He found Torkleson already there, with the tools which they used. These consisted of a hammer and what is called a "side-set." This is a tool designed to be used for such purposes. It is made of steel, has a cutting edge, and the opposite side, which may be designated the "head," is formed for and intended to receive the blow of a hammer. A handle is fitted to it, by which it is held by one person, with the cutting edge against the rivet or substance to be cut, while another strikes the head of the side-set with a hammer. On this occasion Thomas at first used the hammer, while Torkleson held the side-set. Then they changed, and, while Thomas was holding the side-set and Torkleson using the hammer upon it, a thin scale of steel broke from the head of the side-set as the hammer fell upon it, and was driven into the plaintiff's eye.

The cases show no cause of action, unless it be negligence on the part of the defendant in respect to the condition of the side-set. It does not appear that Torkleson was not a competent, skilful workman; and even if, on this...

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