Cleary v. Dakota Packing Co.

• Citation: 71 Minn. 150,73 N.W. 717
• Parties: CLEARY v DAKOTA PACKING CO.
• Decision Date: 12 January 1898
• Court: Supreme Court of Minnesota (US)

71 Minn. 150

73 N.W. 717

CLEARYvDAKOTA PACKING CO.¹

Supreme Court of Minnesota.

Jan. 12, 1898.

(Syllabus by the Court.)

Evidence considered, and held, that it establishes the plaintiff's contributory negligence as a matter of law.

Appeal from district court, Dakota county; F. M. Crosby, Judge.

Action by Edward J. Cleary against the Dakota Packing Company to recover damages for personal injuries. Verdict for plaintiff. From an order denying a motion for a judgment notwithstanding the verdict, defendant appeals. Reversed.

Morton Barrows, for appellant.

P. H. O'Keefe and C. W. Ney, for respondent.

START, C. J.

Action to recover damages for personal injuries received by the plaintiff by reason of defendant's alleged negligence. Verdict for the plaintiff for $2,000, and defendant appeals from an order denying its motion for judgment, notwithstanding the verdict and its alternative motion for a new trial. The plaintiff, at the time he was injured, was employed by the defendant as an engineer, in its pork-packing establishment. His duties were to look after the running and repair of the machinery, and, whenever and however the fact that it was obstructed or in need of repair was brought to his notice, it was his duty to put it in order. The killing, scalding, and curing department of the defendant's business, in which 25 to 35 men were employed, was in charge of a foreman, John Duncan, who had the supervision and entire control of the work and men in this department. The evidence tends to show that it was the duty of the plaintiff, whenever directed by Duncan to remove obstructions from the machinery or to repair it, to do so; but the manner of executing the orderwas left to plaintiff's judgment. In this killing department, during all the time plaintiff was so in the employ of the defendant, some 11 months in all, there was in operation a machine known as a “scraper,” for removing the bristles from the hogs. The evidence tends to show that this scraper, from one cause or another, was started and stopped very frequently in working hours, and that it was frequently obstructed by a hog being caught and held therein, when the machine would be stopped, and the hog dislodged by the men from the outside of the machine, if it could be so done; if not, by going inside of it. The evidence further tends to show that the signal adopted and used for the safety and convenience of the men in stopping and starting the machine during all the time of the plaintiff's service, except the last five weeks thereof, was two or three sharp raps with a hog hook upon an iron rod running along the side of the machine, which could be heard anywhere on the floor where the machine was operated; that, five weeks before the accident, this signal was changed, by direction of the foreman, Duncan, and the man whose duty it was to start the machine was directed to do so as soon as he saw the man whose duty it was to unhook the hogs jump down from the scraping bench, without waiting for the former signal; neither of the signals was promulgated by a rule of the defendant; and, further, that at the time of the accident the scraper was stopped to remove a hog which had become caught therein, and Duncan and another man were trying to dislodge it from the outside, when the plaintiff came up, and Duncan directed him to knock the hog off. He started to go inside of the machine, to enable him to do so, with Duncan's knowledge. Just as the plaintiff was in the act of going inside, he placed his foot on a sprocket wheel, which was propelled by an endless chain, when the machine was started, without any signal being given or warning to him, whereby his foot was caught between the sprocket and chain, and his ankle injured thereby. The plaintiff testified that, when he went into the machine, he had no knowledge of any change in the signals, and relied on the raps on the iron rod being given before starting the machine, for his safety, and, if they had been given, he could have saved himself from injury. He also testified that he depended upon the foreman seeing that the machine was not started without notice to him.

The three principal questions raised on this appeal are: (1) Was the foreman guilty of negligence in the premises which was the proximate cause of the plaintiff's injury? (2) If so, was his negligence that of the defendant, or of a fellow servant? (3) Was the plaintiff guilty of negligence contributing to his injury?

As the last question must be answered in the affirmative, it is unnecessary to discuss or pass upon the others. In considering this last question, there are...