Carroll v. Williston

• Decision Date: 20 August 1890
• Citation: 44 Minn. 287,46 N.W. 352
• Parties: CARROLL v WILLISTON ET AL.
• Court: Minnesota Supreme Court

44 Minn. 287

46 N.W. 352

CARROLLvWILLISTON ET AL.

Supreme Court of Minnesota.

Aug. 20, 1890.

(Syllabus by the Court.)

1. Where counsel submit numerous requests for instructions to the jury, some of which are given and others refused or qualified, a general exception to the refusal of the court to give the requests asked by them is insufficient as the foundation for an assignment of error.

2. It is not actionable negligence per se as between master and servant to omit to protect or cover dangerous machinery, but the question of negligence must depend upon the circumstances of each case, such as the nature of the employment, degree of exposure to danger, and notice thereof to the employe.

Appeal from district court, St. Louis county; STEARNS, Judge.

Walter Ayers, for appellants.

H. H. Hawkins, (S. E. Cheeseman and James E. Markham, of counsel,) for respondent.

VANDERBURGH, J.

The plaintiff's employment was that of a common laborer in defendants' saw-mill. One part of his business was to remove or clear away blocks, rubbish, and sawdust from under a circular saw. The complaint is that the saw was not properly “housed” or protected, and that the shovel furnished him to work with was unfit to use for such purpose on account of a broken or defective handle, and that, in attempting to use it in removing the rubbish, his hand was caught by the saw, and injured. There were exceptions to certain portions of the charge, which are properly here for consideration under the assignments of error. And there are certain assignments of error based upon the refusal of the court to give a large number of instructions asked by the defendants. The only exception upon which these assignments are based is a general one “to the refusal to give the requests asked by the defendants.” We think this exception insufficient to bring before us the propriety of the decision of the trial court upon the several propositions embraced in defendants' requests. Here there were 12 requests submitted to the court; some were given, others qualified by additional instructions in the course of a charge of considerable length, and the majority of them were refused. Some of these requests which were refused should probably have been given, others were properly refused. The object of an exception is to call the attention of the court to some specific error, so that it may act deliberately and intelligently in considering it, as in such case it is its duty to do. It may be that in some instances, where the charge is limited to the consideration of a few distinct propositions upon the subjects embraced in the requests, the court may be presumed to have the same so clearly in mind that less technical strictness will be required in the form of the exception. But the case should be clear, otherwise exceptions to the charge will degenerate into a mere formal matter. The exception in this case was insufficient. Ferson v. Wilcox, 19 Minn. 451, (Gil. 388;)Ayrault v. Bank, 47 N. Y. 576;Requa v. City of Rochester, 45 N. Y. 137, 138.

It remains only to consider the exceptions to the charge of the court as given. Among other things the court charged the jury as follows: “There is no doubt that where a buzz-saw is used employes are in danger of being injured by accident or inadvertence or anything of that kind, and, if it can conveniently, without detriment to the machinery, be housed or cased so as to do away with this danger, it is negligence on the...