Larson v. Swift & Co.
| Decision Date | 19 January 1912 |
| Docket Number | 17,414 - (217) |
| Citation | 134 N.W. 122,116 Minn. 509 |
| Parties | CHARLES LARSON v. SWIFT & COMPANY and Another |
| Court | Minnesota Supreme Court |
Action by the administrator of the estate of Albert J. Wendt deceased, against defendant corporation and Oscar A. Fisher to recover $5,000 for the death of his intestate. The separate answers alleged negligence on the part of deceased. The replies were general denials. The case was tried before Brill, J., and a jury which returned a verdict in favor of defendants. From an order denying plaintiff's motion for a new trial, he appealed. Affirmed.
Existence of physical facts -- directed verdict.
Although there is oral testimony to prove an alleged fact upon the existence of which a litigant's cause of action or defense depends, still, if the admitted physical facts demonstrate to a certainty its nonexistence, the court properly directs the verdict.
Evidence -- directed verdict.
The evidence examined, and found, under this rule, to warrant an instructed verdict for defendants.
Lars Rosness and Henry Marks, for appellant.
Price Wickersham, for respondents.
This action is brought by plaintiff, for the benefit of the next of kin of Albert J. Wendt, deceased, to recover damages for the death of Wendt through the alleged negligence of the defendant corporation, in whose employ Wendt then was. The other defendant is claimed to have been a foreman of the employer, and is also charged with negligence. At the close of all the evidence a verdict was directed in favor of the defendants. A motion for a new trial was made and denied. This appeal is from the order denying the motion.
The deceased was a millwright and carpenter forty-seven years old, five feet six inches tall, and weighing about two hundred pounds.
On January 21, 1911, he, with one Brettschneider, also a millwright, had completed putting in some shaftings and countershaft and pulley in a room called the "casing room" of the hog slaughtering department of the defendant corporation at South St. Paul. These shafts and pulleys were hung from the rafters of the room, and in order to do the work a scaffold had been erected by some other employees. This scaffold was some five or six feet high, and came to within two or three feet of the shafting, belts, and pulley above it. After the machinery was put in motion it was noticed that a belt shifter, when placed in a certain position, projected so as to interfere with a belt. The defendant Fisher, the assistant superintendent or foreman of the defendant corporation, directed the millwrights to cut this off a couple of inches. The machinery and belts were in motion. The end to be cut off was located between two large parallel belts about eighteen inches apart. The deceased undertook to carry out the order. To do this he took a short ladder and leaned it against the staging of the scaffold. The ladder, being short, had to stand with little slant, and Brettschneider held it so as to prevent its falling. Then Wendt, by means of the ladder, mounted the scaffold, stood with the right foot on a plank on the...
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