Healy v. Hoy

• Decision Date: 19 August 1910
• Citation: 127 N.W. 482,112 Minn. 138
• Parties: HEALY v. HOY et al.
• Court: Minnesota Supreme Court

112 Minn. 138

127 N.W. 482

HEALY

v.HOY et al.

Supreme Court of Minnesota.

Aug. 19, 1910.

Appeal from District Court, Ramsey County; Hascal R. Brill, Judge.

Action by Frank C. Healy against Wm. J. Hoy and others. From an order directing judgment for defendants, plaintiff appeals. Reversed.

Syllabus by the Court

Because of the evidence, it is held to have been for the jury to say whether defendant was guilty of negligence and plaintiff of contributory negligence. John P. Kennedy and W. B. Douglas, for appellant.

Morton Barrows, for respondents.

O'BRIEN, J.

The plaintiff who brought this action was an experienced workman 43 year of age. He was injured while engaged under the employment of the plumbing contractor in installing the plumbing in a large building being constructed by defendant as general contractor. Defendant had placed two hoists in the building, one in the elevator shaft and one about 10 feet away in the aperture intended for the stairway. This latter was a double hoist, consisting of steel cables operated by a steam engine. Receptacles for the materials to be elevated were fastened to each cable, so that as one ascended the other descended. The evidence was conflicting as to what guards were placed around this hoist, and it must be assumed that there were no guards upon the floor where the accident occurred. Plaintiff on the day of the injury was with a fellow workman engaged in measuring the distance between the various floors of the building, and beginning at the first had reached the fifth floor. There were, in addition to those mentioned, several apertures in each floor, and plaintiff and his assistant chose different ones for their purpose, and sometimes made measurements through more than one opening on a floor. The measurements were made by inserting a pole in the opening, permitting it to rest upon the floor below, and marking upon it the point where it reached the floor upon which the men were standing. The view on each floor was unobstructed; no partitions having as yet been placed. The hoist in the stairway space had, the day before the accident, been adjusted so that material could be delivered at the sixth floor. Plaintiff had worked in the building for about two months, generally in the basement, but sometimes on other floors, and had seen the hoist operate. During this time the hoist was in general, but not constant, operation. Plaintiff's companion, while upon the fifth floor, and while the hoist was stationary, placed the measuring pole through the stairway space and called plaintiff over to note the measurement. Plaintiff approached, and, kneeling beside the opening, made his observations, and when in the act of arising was struck upon the head by the descending hoist and very severely injured. No warning or notice was given of the starting of the hoist, nor does it appear any one in charge of it had actual notice of plaintiff's proximity to the shaft. The negligence alleged was the failure to place guards around the opening as required by section 1815, Rev. Laws 1905. At the close of the testimony a verdict in defendant's favor was directed, and plaintiff appealed from an order denying a new trial. After the appeal was perfected the plaintiff died, and by an order of this court the administrator of his estate was substituted as plaintiff appellant. For convenience we have and will continue to refer to the deceased as the plaintiff.

1. Section 1815, Rev. Laws 1905, reads: ‘Every hoisting apparatus used in the construction of any building * * * shall be securely protected on each floor by a barrier at least four feet high, which shall be kept closed except when necessarily opened for use. * * *’ The case, therefore, as to the defendant's negligence, is within that class where a positive duty imposed by statute has been neglected, and is not to be distinguished from those in which dangerous machinery has, in violation of the statute, been maintained without guards or other protection against addidents. The defendant introduced testimony to indicate that railings guarding the shaft were maintained upon the side of the opening where plaintiff was when injured. This was disputed upon the part of the plaintiff, which made the existence of the guards a question of fact for the jury, and if...