Gunderson v. Nw. Elevator Co.

Citation47 Minn. 161,49 N.W. 694
PartiesGUNDERSON v NORTHWESTERN ELEVATOR CO.
Decision Date24 August 1891
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

(Syllabus by the Court.)

1. The defendant's grain elevator was operated by machinery moved by horse-power in an adjoining “power-house.” The central wheel was moved by a horizontal lever. Upon the wheel was a convenient place to sit and ride. The place was attractive to children, and they were permitted to frequent it. The employe in charge of the machinery and power-house, on the day in question, having notice of the presence of plaintiff's intestate, a boy six years old hitched the horse to the lever, and started the power while the latter was sitting on the wheel, exposed to danger from uncovered machinery, and then left the premises, with no one in charge. Soon after, in getting off the wheel, the child was caught under the “tumbling-rod,” and killed. Held negligence, for which the master was liable.

2. The acts or omissions of the child's parents in suffering him to be upon the street, in the vicinity of the power-house, held not to be negligence proximately contributing to the injury, and, in any event, was a question for the jury.

3. The measure of damages in this class of cases considered, and the verdict held not justified by the record.

Appeal from district court, Stevens county; BROWN, Judge.

Action by Andrew Gunderson, as administrator, against the Northwestern Elevator Company, for the negligent killing of a son. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

Wilson & Van Derlip, for appellant.

Nelson & Treat and H. T. Bevans, for respondent.

VANDERBURGH, J.

Upon this appeal the following facts must be conceded: On the 1st day of October, 1889, the plaintiff's son, a boy six and one-half years old, was living with his parents at Hancock, Stevens county, in this state, a small village of between two and three hundred inhabitants. Their residence was on the north side of the principal street of the village. The railroad ran parallel and south of the same street, and next adjoining the railway track, and south of the street, was situated the elevator of the defendant, operated by horse-power. This power or machine was situated in a power-house next adjoining the elevator. The large central wheel was moved by a horizontal lever, to the end of which a horse was hitched, which traveled a circuit about 20 feet in diameter. The power was communicated from this wheel to a tumbling-rod coupled by a knuckle to another tumbling-rod extending to and connecting with the machinery inside of the elevator. The tumbling-rod and knuckle next the power were not protected by any covering. The doors of the power-house were usually left open at that season of the year, and boys were frequently attracted within to witness the operation of the power, and to ride on the power or lever, to the knowledge of the agents of the defendant in charge of the elevator. Upon the central wheel a box suitable for a seat had been placed, and was frequently occupied while the power was in motion. This state of things had existed for a considerable space of time before the date referred to. On that day the deceased, plaintiff's son, referred to above, was out on the street near where he lived, at about 3 o'clock in the afternoon, when he was met by another boy about his age, who invited him “to go over and ride.” They went over together to the power-house, which was open as usual, and found the employe of the defendant in charge, who was just preparing to hitch the horse to the lever to start the machinery, and, by his permission, the deceased climbed up, and sat on the box above referred to, to ride there, while the other boy “hung on” the sweep behind the horse. While they were in this position, the horse was started, and the machinery put in motion. Thereupon the employe referred to left the building with no one in charge of the horse and machinery except the boys. Soon after he left, the deceased, in attempting to get off, got caught in the machinery, and was crushed under the knuckle of the tumbling-rod. It is charged in the complaint, and the evidence tends to show, that it was customary for the agent of the defendant to leave the horse in this way without an attendant after he was started, and boys were permitted to come in and occupy the seat, and drive, so that the horse might be kept continually moving. But, in determining the question of defendant's negligence in the premises, we need look no further than the negligent act of the employe in leaving the boys alone at this particular time, under circumstances of exposure to danger from the unprotected machinery. We need not consider the question whether the act of the agent in granting permission to the deceased to ride on the horse-power was in the course of his employment or not; for whether the deceased was within the building and upon the machine, with or without the express or implied consent of the defendant, its agent, then present and engaged in and about its business, knew the situation of the deceased lad, and his negligent act in starting the horse, and leaving the boy in a perilous position, was in the course of his employment, and is clearly imputable to the defendant. The servant in charge of the horse and the machinery, and whose duty it was to start and attend to the same, represented the master. The defendant was bound to use due care, under the circumstances, in the operation of dangerous...

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