Erickson v. W. J. Gleason & Co.

• Decision Date: 30 January 1920
• Docket Number: No. 21578.,21578.
• Citation: 176 N.W. 199,145 Minn. 64
• Parties: ERICKSON v. W. J. GLEASON & CO.
• Court: Minnesota Supreme Court

145 Minn. 64

176 N.W. 199

ERICKSON

v.W. J. GLEASON & CO.

No. 21578.

Supreme Court of Minnesota.

Jan. 30, 1920.

Appeal from District Court, Swift County; Richard T. Daly, Judge.

Action by Franz O. Erickson against W. J. Gleason & Co. Verdict for plaintiff, and from an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appeals. Affirmed.

Syllabus by the Court

Leaving a box of dynamite caps exposed and unguarded in an open drainage dipper near a public highway, where many persons were liable to pass, held to justify the jury in finding the defendant guilty of negligence.

A boy of 15 years is required to exercise only such care as boys of his age, intelligence, and experience usually use under similar circumstances.

A verdict of $1,500 held not to be excessive, where plaintiff sustained an injury necessitating the amputation of the thumb and index finger of his right hand, and a permanent injury to the sight of his left eye.

F. H. Peterson, of Moorhead, for appellant.

J. A. Lee, of Benson, and C. A. Fosnes, of Montevideo, for respondent.

QUINN, J.

Plaintiff, by his guardian ad litem, brings this action to recover damages for injuries which he claims to have sustained through the alleged negligence of defendant's servants. Plaintiff recovered a verdict for $1,500. From an order denying its alternative motion for judgment notwithstanding the verdict or a new trial, defendant appeals.

Defendant was engaged in constructing a large public drainage ditch extending from the southeast quarter of section 26 in the town of Westbank, in Swift county, north across the E. 1/2 of section 23. When the dredge with which the work was being done reached the N. E. 1/4 of section 23, working north, it became necessary to remove the dipper, which operated in a way similar to an ordinary steam shovel, and replace it with a smaller one. The old dipper, which weighed two or three tons, was removed and placed on its edge about 200 feet from the ditch. Thereafter it became necessary for defendant to blast a large boulder, which was in its way in the construction of the ditch. To accomplish this object the foreman of the crew procured some dynamite, fuse, and a box of dynamite caps. These caps, in appearance, resembled an empty No. 22 long rifle cartridge shell. They came from the factory packed 100 in a tin box about 2 1/2 by 3 inches in size. This box was securely packed with excelsior in a wooden box about 10 inches square and 5 or 6 inches deep, and labeled ‘Dangerous,’ ‘High Explosive.’ The foreman opened the box of caps, took one out, and handed it to the man who was to do the blasting. He then replaced the tin box in the wooden box, nailed the cover on, and placed the box in the back part of the dipper, where it remained until the time of the injuries complained of, which was some weeks thereafter. The dipper was about 20 rods west from the highway on the east side of the section. At the time of the accident the dredge was working about 80 rods north from the dipper. There were four families with children residing upon section 23, and a schoolhouse about a mile south. There was a public highway along the south and east sides of section 23. The Erickson family resided upon the southwest quarter of that section, about one mile from the dipper.

On the afternoon of October 13, 1917, the plaintiff, Franz O. Erickson, 15 years of age, and his brother Herbert, 12 years of age, left their home and started out to hunt skunks. They followed the south highway to the southeast corner of the section, then turned north on the road along the east side. Herbert left the highway and rambled across the field to the dipper. He went around to the open end thereof and found therein the box containing the caps. He opened the same, took two caps from it and returned to the road, giving one of them to his brother who attempted to scratch or open it with a wire. It exploded, injuring his thumb and forefinger, so as to necessitate the amputation thereof. His left eye was also injured, so as to permanently affect the sight.

It is contended on behalf of the appellant: (1) That the evidence shows that defendant was free from negligence in leaving the caps in the dipper; (2) that the plaintiff was...