Benenson v. Swift & Company
| Decision Date | 04 December 1914 |
| Docket Number | 18,858 - (110) |
| Citation | 149 N.W. 668,127 Minn. 432 |
| Parties | SAMUEL BENENSON v. SWIFT & COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $3,000 for personal injuries received while in the employ of defendant. The answer denied negligence or want of care on defendant's part, and alleged that the accident and injury were in part at least caused or induced by the negligence of plaintiff, that the conditions under which plaintiff was working at the time of the accident were patent and observable, and that he appreciated the risk. The case was tried before Stolberg, J., and a jury which returned a verdict in favor of plaintiff for $400. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Reversed.
Negligence of master -- questions for jury.
1. Evidence in an action by a servant to recover damages for injuries received by him in a fall from an elevated platform held to make a case for the jury on the issue of defendant's negligence with regard to the place where plaintiff was required to work, and also as to assumption of risk and contributory negligence.
Charge to jury.
2. Instructions held erroneous.
Barrows Stewart & Ordway, for appellant.
A. J. Hertz, for respondent.
Action to recover damages claimed to have been caused by defendant's failure to furnish plaintiff, its servant, a safe place in which to work. Defendant denied negligence on its part and alleged contributory negligence and assumption of risk. Plaintiff had a verdict. Defendant appealed from an order denying its alternative motion.
Plaintiff's duties required him to pull a truck along an elevated platform, to and from defendant's icing plant, in connection with the icing of refrigerator cars by means of chutes. The truck had two wheels 18 inches in diameter, set three feet apart, the extreme width. The platform was parallel to the railroad track and some 16 feet above it being 20 feet wide and more than 50 feet long. A shed 12 feet wide, open in front, supported by posts, was situated along a portion of the opposite side thereof from the track, and was devoted to the storage of boxes used in the business but not in connection with the icing department. The only guard on the other side of the platform was a 4X4 inch timber nailed to the floor on the extreme outer edge. Plaintiff had been employed in the same work at the same place for some six days prior to the accident. Others were likewise employed; the rule being that a truckman without a load should stop and the one with a load pass. Plaintiff was 23 years old, a foreigner with slight knowledge of our language, having been in this country only a few months prior to the accident. The proofs would support a finding that just before he was injured he was drawing his empty truck in the usual manner along the platform, and on reaching a point opposite the shed saw another workman loading a truck with boxes. There being only a little more than sufficient room to pass, plaintiff stopped, whereupon the assistant foreman of the icing gang told him to come on, and just after he had passed, but before his truck was by, the other workman raised his truck so that it collided with plain...
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