Holman v. Kempe
| Decision Date | 10 December 1897 |
| Docket Number | 10,708--(133) |
| Citation | 73 N.W. 186,70 Minn. 422 |
| Parties | MATTS HOLMAN v. ERNEST A. KEMPE and Another |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $ 30,000 for personal injuries suffered by plaintiff. The defendant, Nils Ellsberg, having died after the action was begun, his executors were substituted as defendants. At the close of the trial the defendants requested that the following instructions () be given to the jury:
2. It is the duty of the servant, on entering upon his service, to ascertain what he is expected to do and the dangers directly connected therewith. It is his duty to exercise care to avoid injury to himself. He is under as great obligation to provide for his own safety from such dangers as are known to him, or which may be known by ordinary care on his part, as the employer is to provide for him.
3. The employee must take ordinary care to learn dangers which are likely to beset him in the service. He must not go blindly to his work where there is danger. He must inform himself, and failure to do so where the danger can be ascertained, is negligence.
4. If the servant is a beginner and engages in dangerous work he must improve every opportunity to learn of his duties and their accompanying danger, and if he fails to do so he is guilty of negligence.
10. If the jury find that plaintiff was cautioned not to be in too big a hurry in putting in the powder after he had squibbed the hole, he was bound to pay attention to the caution, and if he failed to do so and was injured by reason of such failure, he cannot recover.
11. If the jury find that plaintiff was cautioned that same morning about putting powder in the hole while it might be hot, the boss had a right to assume that he would pay some attention to the caution, and was not bound to stay there and watch him to see that he did not hurt himself.
Each of these requests was refused, and to each refusal defendants excepted. The jury returned a verdict for $ 2,000 in favor of plaintiff. From an order, Ensign, J., denying defendants' motion for judgment notwithstanding the verdict or for a new trial, defendants appealed. Affirmed.
Order affirmed.
Draper Davis & Hollister, for appellants.
Plaintiff assumed the risk of doing what he did, as the danger was known to him. Quick v. Minnesota, 47 Minn. 361; Fleming v. St. Paul, 27 Minn. 111; Hughes v Winona, 27 Minn. 137; Walsh v. St. Paul, 27 Minn. 367; Olson v. McMullen, 34 Minn. 94; Pederson v. City, 41 Minn. 289. It is the nature of the act, in the doing of which it is alleged the negligence occurs, that determines whether the person is a fellow servant or a vice principal. Lindvall v. Woods, 41 Minn. 212; Corneilson v. Eastern, 50 Minn. 23; Ling v. St. Paul, 50 Minn. 160; Fraser v. Red River, 45 Minn. 235; Fraker v. St. Paul, 32 Minn. 54; Brown v. Minneapolis, 31 Minn. 553. It is the duty of the servant, on entering upon his service to ascertain what he is expected to do and the dangers directly connected therewith. Bailey, Mast. Liab. (1st Ed.) 158; Swoboda v. Ward, 40 Mich. 420, 424. If the servant is a beginner and engages in dangerous work he must improve every opportunity to learn his duties and their danger. If he fails to do so it is negligence in him. Bailey, Mast. Liab 161, 162; Hathaway v. Michigan, 51 Mich. 259; Mad River v. Barber, 5 Oh. St. 541; 2 Thompson, Neg 1052. A new trial will be directed unless it appears beyond doubt that the error complained of did not and could not have prejudiced the rights of the parties. Vicksburg v. O'Brien, 119 U.S. 99; Smiths v. Shoemaker, 17 Wall. 630; Deery v. Cray, 5 Wall. 795; Moores v. National, 104 U.S. 625; Hoberg v. State, 3 Minn. 181 (262); Koehler v. Cleary, 23 Minn. 325.
John Jenswold, Jr., for respondent.
It is not the mere rank or grade of the superior employee, but the nature of the duty or service which he performs, which determines whether he is a vice principal, and where such employee has been given control of the work and of all the workmen engaged in it, with absolute and supreme authority to give them orders how to do the work and where to work, in giving these orders, which the workmen are bound to obey, he represents the master and is performing a duty which would have devolved upon the master if personally present. Union Pacific v. Jarvi, 53 F. 65; Haas v. Balch, 56 F. 984; Burke v. Anderson, 69 F. 814; Mather v. Rillston, 156 U.S. 391; Myhan v. Louisiana (La.) 7 L. R. A. 172; Pittsburgh v. Shields, 47 Oh. St. 387; Greenberg v. Whitcomb, 90 Wis. 225; Strahlendorf v. Rosenthal, 30 Wis. 674; Parkhurst v. Johnson, 50 Mich. 70; Smith v. Peninsular, 60 Mich. 501; Coombs v. New Bedford, 102 Mass. 572, 585; Blomquist v. Chicago, 60 Minn. 426; Carlson v. Northwestern, 63 Minn. 428; Abel v. Butler-Ryan, 66 Minn. 16; Johnson v. Minneapolis, 67 Minn. 141.
Where a request though refused is fairly covered by the charge, the exception should direct the attention of the court to such part of the refused request affected by the alleged error. Delude v. St. Paul, 55 Minn. 63. Where a request is technically correct and might well have been given, the giving by the court of substantially the same request in its own language is no error. Dallemand v. Janney, 51 Minn. 514; Union Pacific v. Jarvi, supra. Where an instruction which is refused is plainly covered by the general charge there is no error. Barbo v. Bassett, 35 Minn. 485; Columbia v. National, 52 Minn. 224.
The servant has a right to presume, when directed to work in a particular place, that the master has performed his duty, and to proceed with his work in reliance upon this presumption, unless a reasonably prudent and intelligent man in the performance of his work would have learned facts from which he would have apprehended danger to himself. Union Pacific v. Jarvi, supra; Russell v. Reed, 32 Minn. 45; Cook v. St. Paul, 34 Minn. 45; Steen v. St. Paul, 37 Minn. 310; Hungerford v. Chicago, 41 Minn. 444; Wuotilla v. Duluth, 37 Minn. 153. In the matter of inspection the servant is bound to use ordinary care only. Bergquist v. Chandler, 49 Minn. 511; Daly v. Sang, 91 Wis. 336; Madden v. Minneapolis, 32 Minn. 303; Robel v. Chicago, 35 Minn. 84; MacDonald v. Chicago, 41 Minn. 439; Corbin v. Winona, 64 Minn. 185; Engstrom v. Ashland, 87 Wis. 166; American v. Foust, 12 Ind.App. 421; Scharenbroich v. St. Cloud, 59 Minn. 116; Kelly v. Southern, 28 Minn. 98; Union Pacific v. Jarvi, supra; Cook v. St. Paul, supra; Myhan v. Louisiana, supra; Carlson v. Northwestern, supra; Abel v. Butler-Ryan, supra; Bonnet v. Galveston, 89 Tex. 72; Olmscheid v. Nelson-Tenney, 66 Minn. 61; Haas v. Balch, 56 F. 984; Johnson v. St. Paul, 43 Minn. 53; Hawkins v. Sauby, 48 Minn. 69; Anderson v. Liljengren, 50 Minn. 3.
The question in all cases on appeal is not whether some technical error may not have crept into the instructions as a whole, but whether it is apparent that the law was presented fairly and correctly to the jury. Northern Pacific v. Cannon, 54 F. 252; Rowe v. Matthews, 18 F. 132; Parshall v. Minneapolis, 35 F. 649.
The plaintiff, while in the employ of the appellants' testate, hereinafter referred to as the defendant, was injured by an explosion of blasting powder, which resulted in the loss of an eye and other permanent bodily injuries. He brought this action to recover damages on account of such injuries on the ground of the negligence of his employer, and obtained a verdict for $ 2,000. The appellants appealed from an order denying their motion for judgment notwithstanding the verdict and their alternative motion for a new trial.
The defendant was engaged in grading a roadbed for a siding of the Duluth & Iron Range Railroad. The ground was frozen, and was loosened with dynamite and black powder. The plaintiff claims -- and there was evidence tending to support the claim -- that on the day of his injury he was at work for the defendant upon such grading as a driller, that is, in making the holes in the frozen earth wherein explosives were to be placed; that it was the duty of the blasters to squib or enlarge the hole by exploding dynamite at the bottom thereof, and afterwards load the hole with blasting powder, and fire the same; that this work of the blasters was dangerous, that its dangers were latent and unknown to the plaintiff, and that he was ignorant of the proper and safe way of squibbing, loading and firing the holes, and that the defendant, by his foreman, John Wickstrom, negligently ordered him from his work as a driller to do this work of the blasters, without informing him of the dangers and risks incident thereto, whereby he was injured while loading one of the holes.
The defendant admitted that the work of blasting was dangerous, but claimed that the dangers to which the plaintiff was exposed were open and apparent; that he assumed them, and his injury resulted from his own carelessness. These issues were clearly and correctly submitted to the jury by the trial court.
The evidence is sufficient to sustain a finding as to the negligence of the defendant's foreman in ordering the plaintiff to the work of blasting without advising him of its dangers, but upon the question of his contributory negligence it is less satisfactory. The evidence tends to show that the holes were loaded with from one to one and a half kegs of blasting powder, and as the plaintiff was pouring the powder into one of the holes the powder raised up, which indicated as we understand it, that the pocket at the bottom of the hole had not been made large enough; that he called the...
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