Lehman v. Dwyer Plumbing & Heating Co.
| Decision Date | 08 May 1908 |
| Docket Number | 15,598 - (44) |
| Parties | ALBERT H. LEHMAN v. DWYER PLUMBING & HEATING COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $11,550 damages for personal injuries. The case was tried before Bunn, J., and a jury which rendered a verdict for $4,000 in favor of plaintiff. From an order denying its motion for judgment notwithstanding the verdict or for a new trial defendant appealed. Reversed and new trial granted.
Personal Injury -- Evidence.
A jury cannot be allowed to speculate or conjecture, or draw inferences, unless there is some reasonable basis therefor in the evidence. Applying this rule in an action to recover damages for personal injuries, it is held that the evidence does not justify the inference that the defendant was negligent as alleged.
Keith Evans, Thompson & Fairchild, for appellant.
Frederick N. Dickson and Herbert P. Keller, for respondent.
This is an appeal from an order denying the defendant's motion for judgment notwithstanding the verdict or for a new trial. The injuries to the respondent are alleged to have been occasioned by the negligence of the defendant in furnishing him with a defective plumber's furnace. On October 4, 1905, the respondent, Lehman, was employed as a journeyman plumber by the appellant, the Dwyer Plumbing & Heating Company, upon a building in process of construction in the city of St. Paul. He was assisted in his work by a helper named Wheeler, who was also in the employ of the appellant company. On that day Lehman was using a plumber's furnace which proved defective, and he instructed Wheeler to turn it into the shop and to get a good furnace. The furnaces belonging to the appellant and furnished by it to its employees were kept in a toolroom in the care and custody of one Moncrief, its stock clerk, whose duty it was to take charge of all the furnaces, see that they were kept in proper repair, and give them to appellant's operatives when required for use in their work. Moncrief had exclusive charge of this toolroom. His instructions required him to keep the toolroom locked and inaccessible to other employees; but it appears that the men were at liberty to go into this room with him and select a particular furnace, if any desired. It was the duty of the stock clerk to see that all furnaces in good repair were kept in the toolroom, and those that were defective and in need of repair in an outside room. Only furnaces supposed to be in good repair were kept in the toolroom. On the evening of October 4, Wheeler returned the defective furnace to the stock clerk, and asked for a good one, and was told by the clerk to call the next morning and get another furnace. When he called on the following morning, Moncrief took the key from his pocket, unlocked the toolroom door, brought out a plumber's furnace, shook it to see if there was gasolene in it, and gave it to Wheeler, with instructions to take it downstairs and fill it with gasolene. Wheeler did so, and then took it to the building where he and Lehman were working. Not having any immediate use for the furnace, he placed it in the basement of the building, where it remained until about half-past four in the afternoon. About that time it became necessary to melt a certain hub or joint, and Lehman directed Wheeler to light the furnace and apply it to the joint in question. This Wheeler did, and then sat down to watch the progress of the melting, while Lehman went to get the plans of the building. Lehman did not examine the furnace, further than to observe that it was not the one which had been in use on the previous day. Upon Lehman's return he told Wheeler to get out of the way, in order that he might inspect the condition of the joint which was being melted. Just as he kneeled down for that purpose, flames burst out from the region of the air cock in the furnace and ignited his clothes, with the result that he was severely burnt. During the confusion which followed some one threw the furnace out of the window, and it was not seen again until it was found by Wheeler on the following morning.
This furnace was so constructed that compressed air and gasolene were combined to produce a flame. It consisted of a reservoir of about one gallon capacity, at one side of which was a cock valve connected with a rubber bulb. On the top of the reservoir there was a small perpendicular metal tube, which ran up through a coil to a burner. In this tube there was another cock valve, which regulated the flow and supply of gasolene to the burner. To use this furnace, after supplying the reservoir with gasolene, it was necessary to open the cock valve at the side of the reservoir, and by means of a rubber bulb pump air into the reservoir with the gasolene. When a sufficient quantity of air to produce the desired pressure had been pumped into the reservoir, the cock valve (or air cock) in the passage connecting the bulb with the reservoir was then closed, and the other cock valve (the oil cock) in the tube leading to the burner was opened sufficiently to allow gasolene in the requisite amount to be forced, by the operation of the compressed air in the reservoir, through the tube and coil to the burner. When the furnace was in operation with the flame burning, it was necessary that the cock valve controlling the passage from the...
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