Antletz v. Smith

• Decision Date: 26 January 1906
• Citation: 97 Minn. 217,106 N.W. 517
• Parties: ANTLETZ v. SMITH.
• Court: Minnesota Supreme Court

97 Minn. 217

106 N.W. 517

ANTLETZ

v.SMITH.

Supreme Court of Minnesota.

Jan. 26, 1906.

Appeal from District Court, Hennepin County; Andrew Holt, Judge.

Action by Fred Antletz against H. H. Smith. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

Syllabus by the Court

Action to recover damages for personal injury. The employé notified his employer that the machine was dangerous, and was told to ‘go ahead and work, and I will fix it.’ In the afternoon of the same day he was injured. During the impaneling of the jury a controversy arose as to the right of the plaintiff to show that the defendant was insured by an indemnity insurance company, and the defendant claims that the plaintiff's attorney was guilty of misconduct. The jury returned a verdict for $1,500 for the plaintiff. On the evidence, held:

(a) That the danger was not so imminent that the plaintiff assumed the risk as a matter of law.

(b) That the plaintiff's attorney was not guilty of prejudicial misconduct. For the purpose of enabling him to intelligently select the jury, he had a right to learn whether the defendant was insured. Spoonick v. Backus-Brooks Co., 94 N. W. 1079, 89 Minn. 354.

(c) The verdict was not excessive. Keith, Evans, Thompson & Fairchild, for appellant.

Frank D. Larrabee and Mathias Baldwin, for respondent.

ELLIOTT, J.

This is an appeal from an order denying the defendant's motion for judgment notwithstanding the verdict or for a new trial. The action was brought to recover damages alleged to have been caused by the negligence of the appellant. The appellant at the time of the accident was operating a sawmill in the city of Minneapolis, and the respondent was engaged in operating a saw lath. The lath machine consisted of a saw table about a foot wide, about 4 feet long, and 2 feet high, in which were set three circular saws, 9 inches in diameter, extending 4 inches above the table. By these saws ‘bolts' of wood, 1 1/2 inches thick, from 1/2 to 6 inches wide and 4 feet long, were cut into lath. The bolts were fed into the machine by two sets of feed rollers, one in front and one behind the saws. On the surface of the rolls there were lines of teeth, for the purpose of catching and holding the bolts and forcing them through the saws. These teeth, when new, were one-eighth of an inch long and half an inch apart. Running the bolts through the lath machine caused the teeth on the rolls to wear down and break off, and this finally rendered the machine dangerous to use. Between 9 and 10 o'clock of the day on which the respondent was injured, one of the bolts was thrown back because the teeth failed to hold. He reported this to the appellant's foreman and threatened to leave his employment unless the machine was fixed. The foreman said, ‘Go ahead, and I will fix it.’ The respondent continued his work and on the afternoon of the same day another bolt was thrown back and the index and middle fingers of his right hand were injured thereby. The jury returned a verdict in favor of the plaintiff for $1,500. The appellant contends that (1) the respondent assumed the risk of continuing work after receiving the promise to repair, (2) that the attorney for the respondent was guilty of misconduct which was prejudicial to the defense, and (3) that the verdict is excessive.

1. After the respondent notified his employer that the machine with which he was working was in a dangerous condition and received the promise to repair it, he had the right, in reliance on the promise, to continue his work for a reasonable time to enable his employer to fulfill his agreement, and during such time he did not assume the risk arising from and incident to such defect, unless the risk was so obvious and imminent that a person of ordinary prudence would not have incurred the same. Greene v. Minneapolis & St. Louis Ry. Co., 31 Minn. 248, 17 N. W. 378,47 Am. Rep. 785;Lyberg v. Northern Pacific Ry. Co., 39 Minn. 15, 38 N. W. 632;Rothenberger v. Northwestern Construction M. Co., 57 Minn. 461, 59 N. W. 531;Gray v. Red Lake Falls Lumber Co., 85 Minn. 24, 88 N. W. 24. The only question, therefore, is whether the danger was so obvious and imminent as to resolve the assumption of risk into a question of law. Clearly it was a question for the jury. That there was...