Kerling v. G.W. Van Dusen & Company
| Citation | 121 N.W. 227,108 Minn. 51 |
| Decision Date | 14 May 1909 |
| Docket Number | 16,080 - (65) |
| Parties | PETER KERLING v. G.W. VAN DUSEN & COMPANY |
| Court | Supreme Court of Minnesota (US) |
Action in the district court for Yellow Medicine county, by the administrator of the estate of Andrew Kerling, deceased, to recover $5,000 for the wrongful death of decedent. The case was tried before Powers, J., and a jury which returned a verdict in favor of plaintiff for $1,200. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Reversed and new trial granted.
Fencing Dangerous Machinery -- Instruction to Jury.
Whether the shaft to a wood-sawing machine should be guarded in any other manner than as protected by the feeding trough, in front of which the operator stood, was a question of fact to be determined by the jury; and it was error for the trial court to instruct the jury that the master was negligent in failing to comply with the statute by not covering the shaft.
Morton Barrows, for appellant.
Thomas E. Davis, Ernest A. Michel and John I. Davis, for respondent.
Andrew Kerling, a boy of seventeen years of age, was killed while operating a circular wood saw for appellant, and his father brought this action under the statute to recover for the loss of services. The jury returned a verdict of $1,200. The action was based on the charge that appellant was negligent in not providing proper guards for the shaft, saw, and belting, and in not providing a proper belt shifter, and in failing to give the boy proper instructions. Defense: General denial, that the statutory provisions with reference to guards had been complied with, and that the boy was guilty of contributory negligence.
The machine consisted of a circular saw fastened to a shaft which was kept in position by a frame which held the shaft about three feet from the ground. The machine was located in a shed adjoining a grain elevator building, and the shaft was propelled by a belt connected with the machinery in the elevator. The machine was designed to saw cordwood into the desired length, and on the front of it was located a wooden trough, or rest, about four feet long, the bottom part of which was about eight inches wide, and the back, or upright part, from eight to ten inches high. In operating, a stick of wood was placed in the trough, and the operator rocked the trough forward, thus bringing the stick in contact with the saw, and when the cut was made he rocked it backward, and then moved the stick to the right for the next cut, and so on. Upon the shaft on which the saw was hung, and a few inches to the left of the saw, was a broken collar, or shoulder, which revolved with the shaft. The saw was unprotected, and the shaft was in no manner guarded except by the trough, which projected four or five inches above it. As the wood was cut, it fell from the saw to the right of the machine, and the pieces were thrown by the operator or some one else into a pile behind the machine. At the time of the accident the boy was in the act of cutting one of the sticks when a piece of wood rolled down the pile and lodged in close proximity to the lower part of the saw. He was standing in front of the machine, a little to the left of the center of the trough, and reached over the top of the machine to pick up the piece of wood, when the sleeve...
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