Manore v. Kilgore-Peteler Co.

• Decision Date: 12 March 1909
• Citation: 120 N.W. 340,107 Minn. 347
• Parties: MANORE v. KILGORE-PETELER CO.
• Court: Minnesota Supreme Court

107 Minn. 347

120 N.W. 340

MANORE

v.KILGORE-PETELER CO.

Supreme Court of Minnesota.

March 12, 1909.

Appeal from District Court, Hennepin County; Frederick V. Brown, Judge.

Action by Ezra N. Manore against the Kilgore-Peteler Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment for defendant.

Syllabus by the Court

Plaintiff, 35 years of age, a foreman or straw boss of defendant, about to unload a flat car, complained to defendant's superintendent that the number of men provided him was not sufficient to do the work safely. The superintendent refused to furnish additional help. Plaintiff proceeded to the work, and safely unloaded all or practically all of one of two piles of timbers on the car. In unloading the second pile, one timber in falling struck the other timbers at the top of the other tier, whereby plaintiff was thrown from the car and injured. It did not appear that, if the method used in unloading the first pile had been used in unloading the second pile, the work could have been done safely. It is held that plaintiff's own conduct precluded his recovery of damages. Brown, Albert & Guesmer, for appellant.

James R. Hickey, for respondent.

JAGGARD, J.

Plaintiff and respondent, a man 35 years of age, for five months before the accident herein described had been yard foreman in the employ of defendant and appellant. At the time of the accident he was either a foreman or a straw boss over the man with whom he was working. Some days before the accident a freight car was switched into defendant's yards, loaded with timbers with square sides, which were 7x10 inches in dimension and from 15 to 16 feet long. They were piled on the car four high in tiers and two tiers to the car. Plaintiff with a crew of four men undertook to unload the car and move the unloaded timbers to a small truck, by which they were to be carried to the mill. Plaintiff, standing on the car, removed all or practically all of one tier of timbers. Defendant's employés working on the ground carried the timbers, by means of hooks attached to each end of the timber, to the truck. A man took hold of one of the two handles of each hook. Thus four men were required to carry each timber. Part of the second tier had been removed. While plaintiff was removing another timber on the freight car it swung out at one end across the car and caught two timbers on the next tier, causing them to tumble over, strike him on the heel, and throw him head first to the ground. The jury found for the plaintiff in the sum of $541.99. This appeal was taken from the judgment.

The gist of the negligence alleged was defendant's failure to provide sufficient and proper amount of help. The further allegation of negligence, of failure to provide a safe place, and of the giving of improper or wrongful orders to this plaintiff to proceed to do the work with the help furnished, does not in final analysis amount to additional or different negligence. Whether the giving of that order served to exonerate defendant from the assumption of risk or contributory negligence will be subsequently referred to.

No question can arise that the failure of the master to employ a sufficient number of competent employés may constitute actionable negligence on his part. It is doubtful on this record whether such failure was shown to be a question of fact. It will, however, be assumed that this defendant was negligent in this respect. None the less we are of opinion that defendant was precluded from recovering by his own conduct; for the defendant himself testified that before the accident occurred he went to see ‘the superintendent about more men. * * * and he said he didn't have any more men to send out there at that time, and that one man on a car was sufficient to throw these timbers off a freight car. Q. You wanted two men to handle a timber, because you thought that two men were necessary to make it safe and proper, and in order to make the work sufficiently easy and not...