Larson v. St. Paul & Duluth Railroad Company
| Decision Date | 18 June 1890 |
| Citation | 45 N.W. 1096,43 Minn. 488 |
| Parties | Ole Larson v. St. Paul & Duluth Railroad Company |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for St Louis county, Stearns, J., presiding, refusing a new trial. The action was brought to recover $ 5,000 damages for personal injuries.
Order affirmed.
Jens Jenswold, Jr., for appellant.
White & Reynolds, for respondent.
Collins, J. Plaintiff,
while in defendant's employ as a laborer upon a ditching-machine built upon a flat-car, received an injury for which he sought to recover damages in this action. At the conclusion of the testimony the trial court dismissed the case. This was correct, and the order appealed from, refusing a new trial, must be affirmed. A description of the machine at this time would serve no good purpose and the testimony as to how the plaintiff was injured was very indefinite and obscure. He stood upon the car endeavoring to turn, as directed to do by the foreman, a large cog-wheel, which was a part of the windlass upon one of the derricks. In the absence of the crank ordinarily used for the purpose, plaintiff seized the spokes of the wheel with both hands, commenced to turn it, and in some way, plaintiff being unable to state exactly how, his thumb was caught between the cogs of the wheel he was turning and those of a smaller wheel into which they ran and matched, that the smaller might be put in motion. The plaintiff must have known that the crank usually on the wheel was missing, and both wheels, with their cogs, were in plain sight. The risks in handling such machinery were apparent and open to him, so that he knew them, or by the exercise of ordinary care and ordinary observation should have known and understood them. He must have realized that injury would result if his hand should be drawn into the cogs as in turning the wheels they were brought in contact. The danger was obvious, and the risk was assumed by plaintiff when he undertook to move the large wheel by taking hold of its spokes.
But it is urged that plaintiff's hand was thrown into the cogs of the wheels because a rod, which, when in position, held the derrick in its proper place for service, at right angles with the floor of the car, had slipped out of position, and the derrick had revolved upon the pivot of its mast until its boom had swung around against the car, thereby jarring it and throwing plaintiff off his...
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