Bailey v. Grand Forks Lumber Company
| Citation | 119 N.W. 786,107 Minn. 192 |
| Decision Date | 26 February 1909 |
| Docket Number | 15,816 - (83) |
| Parties | JOHN BAILEY v. GRAND FORKS LUMBER COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Polk county by John Bailey to recover $15,000 damages for personal injuries sustained by his minor son while employed by defendant. The case was tried before Watts, J., and a jury which returned a verdict in favor of plaintiff for $7,500. From an order denying its motion for a new trial, defendant appealed. Affirmed.
Contributory Negligence.
The plaintiff's minor son was injured by a jump saw while working in the defendant's sawmill. Held: The evidence does not show as a matter of law that the son was guilty of contributory negligence, or that he assumed the risks.
Request to Charge Jury.
The general rule is that the omission of the trial court to charge the jury upon a particular point is not error, unless the court is requested so to do. This case is within the rule.
Skulason & Husband and Howard T. Abbott, for appellant.
J. A Sorley, for respondent.
Barney Bailey, hereinafter referred to as the plaintiff, a minor seventeen years old, was on July 9, 1907, injured while working for the defendant in its sawmill at East Grand Forks by his foot coming in contact with a saw. His father brought this action in the district court of the county of Polk to recover damages for the benefit of the son on account of such injury. Verdict for $7,500. The defendant appealed from an order denying its motion for a new trial.
The assignments of error raise two general questions.
The first one is: Did the trial court err in denying the defendant's motion to dismiss the action when the plaintiff rested his case, and in denying its motion for a directed verdict at the conclusion of the evidence? The contention of the defendant is that the court did so err, for the reason that the evidence was not sufficient to establish the alleged negligence of the defendant, but that it did show that the plaintiff was guilty of negligence and assumed the risks.
The evidence in some material particulars is conflicting, but the record discloses evidence, responsive to the issues, tending to show these facts: The plaintiff was employed by the defendant in its sawmill, and was placed in charge of a jump saw used for cutting logs into shingle lengths. It was two and one half feet in diameter, and revolved in a box or platform fifty feet long, some three feet wide, and two feet high. The platform extended parallel with the wall and fifteen inches therefrom. The saw was raised and lowered through an opening in the platform by means of a lever. This opening, the original width of which was one and one fourth inches, was cut wider as the saw was used, so that it became and was from two and one half to four inches wide. This condition had existed some time, and was known to the defendant. Within about one foot of the wall side of the platform a plank two by ten was placed on edge to prevent logs from falling on the other side. The opening for the saw was cut through this plank. There was a conveyor underneath the saw to carry away the sawdust and pieces of logs. This would frequently clog up, and then it would become necessary for the plaintiff to go upon the top of the platform, immediately to the right of the opening for the saw, cross over on the other side of the plank, and poke in from the wall side of the platform to loosen the clogged condition. Immediately to the right of the opening through which the saw was raised was a plank sixteen inches wide, extending across the platform and beyond the plank on edge. This plank was split, and its side next to the wall was unsupported, and it would give way when stepped on. This condition had existed for such a length of time before the accident as to charge the defendant with notice of the defect, but it was unknown to the plaintiff prior to the time of his injury. At the time of his injury the plaintiff went upon the platform, to the place where he was required to go to clean out the refuse from the conveyor, looking for his pick which he used to hold the logs in place when cutting them. In returning, he stepped on that part of the plank to the right of the saw, which was loose. It gave way, and caused him to lose his balance, and, to save himself from falling through an open window upon the sill of which his right foot was resting, he threw out his left foot. It did not catch, but slipped into the opening through which the saw was raised, came in contact with the saw, which split his foot several inches above the ankle, so that it became necessary to amputate it.
This occurred thirty nine days after he was put in charge of the saw. He knew that, when the saw was lowered below the platform, it continued to revolve, and of the opening through which it was raised or lowered. He, however, testified that he did not know that the opening was wide enough to permit his foot to pass through it.
The negligence on the part of the defendant alleged in the complaint and relied upon at...
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