Carver v. Luverne Brick & Title Co.

• Decision Date: 16 May 1913
• Citation: 121 Minn. 388,141 N.W. 488
• Court: Minnesota Supreme Court
• Parties: CARVER v. LUVERNE BRICK & TITLE CO. et al.

121 Minn. 388

141 N.W. 488

CARVER

v.LUVERNE BRICK & TITLE CO. et al.

Supreme Court of Minnesota.

May 16, 1913.

Appeal from District Court, Rock County; L. S. Nelson, Judge.

Action by Maud Carver, administratrix, against the Luverne Brick & Tile Company and others. From an order denying a blended motion for judgment or a new trial, the defendant named appeals. Affirmed.

Syllabus by the Court

In an action for wrongful death, caused by the negligence construction and maintenance of an elevator in a manufacturing plant, the evidence held sufficient to sustain the verdict against the owner.

The verdict in favor of the superintendent, under the pleadings and issues as submitted to the jury, is not inconsistent with that against the owner.

The erroneous instruction given the jury on contributory negligence is not reversible error, for the reason that the evidence was not sufficient to raise such issue.

No error was made in refusing an instruction confining the scope of the decedent's employment within too narrow limits.

The damages awarded held not excessive.

A. J. Daley, of Luverne, for appellant.

E. H. Canfield, of Luverne, for respondent.

HOLT, J.

In this action against defendants for damages caused by their negligence, resulting in the death of plaintiff's intestate, plaintiff had a verdict against the defendant corporation; but the other defendants were found without fault, the president of the corporation by the court, and the superintendent thereof by the jury. The corporation appeals from the order denying its blended motion for judgment or a new trial.

[1] The facts are substantially these: The defendant corporation, for some time prior to June 6, 1911, was manufacturing brick and tile at the city of Luverne, and the defendant Stanton Hinkly was its superintendent. Part of the plant was a four-story building, where the manufactured brick or tile was partly dried before being placed in the kilns. The space between each floor was less than seven feet. The material to be dried was carried up or down these floors by placing the same in a wheelbarrow and wheeling the barrow onto the platform of a gravity elevator located in one corner of the building. The elevator was not protected by any shaft or railing, so that it was open on the two sides. A rope or cable was attached to the elevator, and passed over a large pulley at the top of the building and the other end tied to a weight, weighing about 150 pounds more than the elevator. Hence the elevator could raise about 150 pounds to any floor, and would not descend unless a greater load was placed thereon. To control the speed of the elevator, a friction brake was applied upon the large pulley at the top. Two small ropes were attached to this brake, and passed down along the north edge of the elevator opening to within four feet of the bottom. By pulling the one rope, the brake was set; and by pulling the other, it was released. On each floor, except the ground floor, two blocks, four inches square and of some length, were placed near the edge of the elevator opening; a bolt passed through the middle of the block and into the floor. When these blocks were turned parallel with the edge, the elevator could pass freely; but, if turned at right angles, they projected over the opening and the elevator was held at that floor. The one who operated the elevator did not ride on it, and the men were told not to ride thereon. Nevertheless, it was a frequent practice both for the men and the superintendent so to do. Of course, no one over 150 pounds in weight could ride up. Plaintiff's intestate, James Kenneth Carver, was 16 years old, weighed 109 pounds, a high school student, intelligent, active, and obedient. On Friday afternoon preceding June 6, 1911, he was employed by the defendant corporation, and the next morning was set to operate this elevator. He also assisted in other work, as directed. On the morning of June 6th, while near the elevator on the ground floor, the superintendent, Stanton Hinkly, sent him to tell some men to clean out the brickbats in one of the kilns. He was seen to start in the direction of the kiln; the superintendent at the same time turned to go in the opposite direction into the engine room. Shortly he also went out toward the kiln; the boy was not then there. Coming back, and in from 5 to 10 minutes after young Carver had been sent out on his mission, Hinkly noticed that the elevator was not at the bottom floor, as he expected; and, looking up, he discovered the boy's body hanging down from the elevator platform, being held by the head or neck, which was caught between the edge of the platform and that of the elevator opening for the fourth floor. He was dead when so found. The head and one arm were above the platform. Within a foot or so of the elevator opening on the third floor was a wheelbarrow of the kind used in cleaning out débris from the kilns. It was tipped on its side. The supposition is that, since only two wheelbarrows were down at the kilns and five men to do the work, Carver thought proper to go and get the wheelbarrow on the third floor. That barrow had evidently been brought to the elevator by him from where it was before placed on that floor. Upon the trial had, the jury rendered a verdict for $3,000 against the corporation.

The appellant, the defendant corporation, claims that it is entitled to judgment notwithstanding the verdict, on the grounds that no negligence was proven against it, that the decedent's contributory negligence conclusively appeared, and, the jury having found a verdict in favor of the appellant's superintendent, through whose acts alone negligence could be imputed to the corporation, judgment should also go in favor of appellant. The very structure and mode of operation of this crude elevator suggests a death trap. In addition, the proof tended to show that the brakes sometimes failed to hold; that the brake ropes were smooth, slippery, and of a size difficult to handle with effect; that the elevator frequently got beyond the control of the operator; that, when the elevator was on the ground floor, there were no blocks to hold it down, nor could the brake be depended on...