Hamlin v. Lanquist & Illsley Company
| Decision Date | 22 July 1910 |
| Docket Number | 16,610 - (119) |
| Citation | 127 N.W. 490,111 Minn. 491 |
| Parties | CHARLES E. HAMLIN v. LANQUIST & ILLSLEY COMPANY |
| Court | Minnesota Supreme Court |
Action by the administrator of the estate of Charles C. Nichols deceased, in the district court for St. Louis county, to recover $5,000 for the death of his intestate.
The complaint, after allegations concerning the construction of the derrick mentioned in the opinion, alleged that defendant negligently reversed the position of the boom in the derrick so that, instead of extending the same outward from the mast in the opposite direction from where the stiff-legs were attached to the mast, it extended the boom while at work away from the mast in the same direction as were said stiff-legs in such manner that said stiff-legs could not hold the mast in its proper position, nor counteract the weights then applied at the end of the boom, and defendant negligently failed properly to weight down and fasten the derrick or cause the bottom of the mast to be held in the casting, and failed to make proper provision to prevent it from being tipped over in operation; that in such condition the derrick and all its appliances were unsafe and dangerous to use in raising or lowering any heavy weight and within the knowledge of defendant exposed its employees to great and imminent danger, but notwithstanding this it negligently began and continued the operation of the derrick in such condition, and while so in operation the mast was suddenly raised or pulled out of its socket and the derrick, including the mast and stiff-legs, was pulled over and to the ground; that the intestate was ignorant of any risk connected with the operation of the derrick and defendant negligently failed to give him any warning, but required him to continue his work there; and that defendant negligently failed to properly supervise and direct the method in which the derrick should be used. The answer denied that the injury or death was caused by the negligence of defendant.
The description of the derrick is found in the opinion. There was evidence that the derrick rested on two sills each fifty feet long; that the stiff-legs stood on the extreme end of the sills, and the mast stood at the angle of the sills and was forty-five feet long; that the two stiff-legs supporting it were ninety feet long and set at an angle of forty-five degrees; that the boom was one hundred feet long.
The case was tried before Dibell, J., and a jury which returned a verdict in favor of plaintiff for the amount demanded. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.
Injury to servant -- defective derrick -- charge to jury.
Plaintiff's intestate was a member, but not the foreman, of defendant's structural iron crew, engaged in the construction of a high building. Defendant used large steel derricks. The heel of each of the two masts thereof, when erected, rested in a steel socket, which kept the mast from slipping sideways. Defendant provided certain clamps, which could be fastened over the bottom of the masts, whose function it was to hold the mast in position and to prevent it from kicking out of the socket. The derricks were moved from place to place as the work progressed and raised steels for two floors. They were then moved up two floors, and so on. Immediately prior to the accident a derrick had been set up by the crew of iron workers, of which deceased was a member. The derrick was set up. The clamps were not used. At this time the derrick was on the fifth floor some sixty-five feet above the ground. There was no floor between what were known as the third and fifth floors. While defendant's servants were lifting a portion of the lower derrick and placing it into position, the mast of the lifting derrick slipped out of position and fell. Deceased was thereby caused to fall. He subsequently died from injuries he received. It is held:
1. That the trial court properly refused to direct a verdict for defendant, in view of the testimony that before the accident the head foreman's attention was called to a movement in the mast which indicated that something was wrong in the arrangement and operation of the derrick, and that the head foreman went above to see about the matter. The court properly charged that if the situation were such that in the exercise of ordinary care the foreman did or should have seen the defect, and did or should have remedied the same, then the defendant was guilty of negligence.
2. A majority of the court (Jaggard, J., dissenting) are of opinion that a new trial should not be granted because the trial court charged that "it was the duty of the defendant to exercise ordinary care in seeing to it that this derrick was properly equipped and like care in keeping it in a reasonably safe condition," and because the court refused to charge that if the master supplies suitable material for the construction of an appliance, which he is not obliged and has not undertaken to furnish in a completed state, and the workmen themselves construct it according to their own judgment, the master is not liable for the manner in which they use the materials supplied.
3. As a matter of law plaintiff did not assume the risk and was not guilty of contributory negligence.
Howard T. Abbott, for appellant.
John Jenswold, Jr., for respondent.
The intestate of plaintiff and respondent was employed by defendant and appellant in the construction of the new courthouse building in Duluth. Various crews of men were employed. The defendant insists that every member of these crews had a foreman or boss in charge of them. Deceased, according to defendant, was foreman of the crew here involved. The jury found otherwise. He must be here regarded as merely a member of the structural iron crew, in which work he had been engaged for years previously.
Defendant used certain large steel derricks. Each derrick had two stiff-legs, composed of timbers designed to hold the mast rigid and in an upright position. The mast and boom were equipped with the usual lines, blocks, pulleys, etc. The heel of each of these masts, when erected, rested in a steel socket or hole in a casting which tended to keep the mast from slipping sideways. Steel goosenecks were arranged at the top of each mast, through which wire cables were passed. These cables were brought down and wrapped around the steel framework of the building upon which the derrick stood. By the use of turn buckles these cables were set and fastened into position by means of these stiff-legs and cables. Defendant also provided certain dogs or clamps, which could be fastened over the heels or bottom of the masts, which had a tendency and whose function was to assist in holding the mast in position and to prevent the bottom of the mast from kicking out of the socket or hole. These clamps were sometimes used and sometimes not at all. The derricks were moved from place to place as the work progressed. They remained in one place until the work of raising steel for two floors was done. They were then moved up two floors, and so on.
Immediately prior to this accident the derrick in question was set up by the crew of iron workers of which deceased was a member, and it must be assumed for present purposes not its foreman. Anderson, the head foreman of the iron workers' crew, was present at various times while this derrick was being put up. The derrick was set up. The dogs or clamps provided by defendant were not used. While defendant's servants were lifting a portion of the lower derrick and placing it in position, the mast of the lifting derrick slipped out of position -- i.e., out of its socket -- and fell down, causing the deceased to fall. From the effects, he subsequently died. At this time the building was partially constructed. The derrick was on the fifth floor, some sixty-five feet above the ground. There was no floor between what was known as the fifth and third floors. There was conflict of testimony as to whether there was any lashing of the mast on this derrick. The jury returned a verdict for plaintiff.
This appeal was taken from the order of the trial court denying defendant's usual motion in the alternative.
1. The first question presented by the record is whether the trial court should have directed a verdict for defendant. It is clear that on this point the trial court ruled correctly.
The court charged in part that if the witness whose testimony appears in the record called the attention of Anderson, the head foreman, to a movement in the mast which indicated that something was wrong in the arrangement and operation of the derrick, and Anderson went above to see about it, and the condition and situation were such that in the exercise of ordinary care Anderson would or should have seen a defect, and in the exercise of ordinary care would or should have remedied the same, "then you can find that the defendant was guilty, although at the time the derrick was put up it was in a proper and safe condition for operation." The record justified the instruction. It follows that the trial court properly refused to direct judgment for defendant notwithstanding the verdict.
2. The question then arises whether a new trial should have been granted because the court charged the jury: "It was the duty of the defendant to exercise ordinary care in seeing to it that this derrick was properly equipped and like care in keeping it in a reasonably safe condition," and because the court refused to charge that, "when a master has furnished proper and reasonably safe appliances for the work to be done, his personal duty does not extend so far as to require him to attend to the proper regulation and adjustment of...
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