Friedrich v. City of St. Paul

• Decision Date: 27 May 1897
• Docket Number: Nos. 10,596 - (133).,s. 10,596 - (133).
• Citation: 68 Minn. 402
• Parties: WILLIAM FRIEDRICH v. CITY OF ST. PAUL.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

68 Minn. 402

WILLIAM FRIEDRICH v. CITY OF ST. PAUL.¹

Nos. 10,596 - (133).

Supreme Court of Minnesota.

May 27, 1897.

Appeal by plaintiff from an order of the district court for Ramsey county, Kelly, J., refusing a new trial after a verdict for defendant. Affirmed.

O. H. O'Neill, for appellant.

James E. Markham and Carl Taylor, for respondent.

MITCHELL, J.

The facts in this case are practically undisputed. The plaintiff was a common laborer employed by the street commissioner of the defendant, and ordered to report to one Anfang for work. Anfang, also employed by the street commissioner, was directed by the street commissioner to take some men with him, and dig a trench on University avenue seven feet long, two and one-half feet wide, and seven feet deep, for the purpose of putting in a drinking fountain.

Anfang was a carpenter by trade, who had been in the employment of the city for some time, and had performed a similar job of work on a former occasion. It does not appear that Anfang received any special instructions as to how the work was to be done, or as to what tools or appliances he was to take for use in performing it. Thereupon Anfang took plaintiff and another man, and the three commenced digging the trench; Anfang evidently acting as the foreman or boss of the work. They had dug the trench to the depth of about four feet, when it was discovered that lagging or curbing was necessary to prevent the sides of the trench from caving. Thereupon Anfang procured some white pine planks, two by six inches, sharpened the ends of them, and drove them into the ground around the sides of the trench; the plaintiff, as he testifies, holding them while Anfang drove them down with an iron sledge hammer which he obtained from the city tool house. No iron caps were put on the tops of the timbers to keep them from splitting. After these timbers had been driven down a certain distance, the plaintiff resumed the work of throwing earth out of the bottom of the trench.

As the trench was excavated deeper, it was necessary to drive the timbers still deeper. This Anfang was engaged in doing with the iron sledge hammer while plaintiff was in the trench shoveling out earth; and one of the blows with the hammer caused a splinter to fly from one of the timbers and strike plaintiff in the face and eye, causing the injuries complained of. There was evidence to the effect that the usual and proper way of driving down lagging or curbing of this sort is to put an iron...