Manteuffel v. Theo. Hamm Brewing Co.

• Decision Date: 12 December 1952
• Docket Number: No. 35780,35780
• Citation: 238 Minn. 140,56 N.W.2d 310
• Parties: MANTEUFFEL v. THEO. HAMM BREWING CO.
• Court: Minnesota Supreme Court

Page 310

56 N.W.2d 310

238 Minn. 140

MANTEUFFEL v. THEO. HAMM BREWING CO.

No. 35780.

Supreme Court of Minnesota.

Dec. 12, 1952.

Syllabus by the court.

1. Tested by the rule stated in our former decisions, this action is not barred by M.S.A. § 176.06, subd. 1.

2. Evidence examined and Held that a finding of defendant's negligence and its causal relationship to plaintiff's injuries is sustained by the evidence.

3. Under the facts in this case it was not reversible error to permit a former employe of defendant to testify to pile up of beer cases on defendant's conveyors, even though he could not recall whether it was on the conveyor here involved, absent a showing that the conveyors were of a different type or construction.

4. In considering whether equipment furnished for a specific purpose is safe, the circumstances under which it is to be used is one of the factors determining whether or not it is safe for the use intended. It was not error to submit to the jury, on the issue of defendant's negligence, the question of whether equipment, otherwise in perfect shape, was safe for the particular use to which it was put under the circumstances then existing.

5. An essential element of negligence is the actor's knowledge, actual or imputed, of the facts out of which the duty arises. An act or omission is not negligence unless the actor had knowledge or notice that it involved danger to another, but knowledge may be imputed where the actor should have anticipated from the facts shown to exist the inherent danger existing under the circumstances involved. It was not error to refuse defendant's requested instruction, which failed to include the element of knowledge which might be imputed to defendant.

6. Where the court adequately charged the jury on the doctrine of plaintiff's assumption of risk, it was not error to refuse the following requested instruction: 'Defendant is not required to call to plaintiff's attention or to warn plaintiff of any condition or hazard which is open and obvious and can be expected to be as apparent to plaintiff himself as to defendant. As to such conditions, defendant is entitled to rely on the assumption that plaintiff will take reasonable precautions to protect himself.'

7. While remarks of counsel in his closing argument to the jury are not deemed sufficiently prejudicial to warrant a new trial, they were unwarranted and are not to be condoned or the impropriety overlooked.

Merlyn C. Green and Bundlie, Kelley, Finley & Maun, St. Paul, for appellant.

Harold Shear, St. Paul, for respondent.

KNUTSON, Justice.

Appeal from a judgment entered pursuant to a jury verdict in favor of plaintiff.

Plaintiff, who was employed by William Baumeister Construction Company as a painter, was assigned to work at defendant's plant about October 15, 1949, and continued to work there until the date of the injury giving rise to this cause of action, which was January 5, 1950. While working in defendant's plant, he, as well as other painters, was under the direct supervision of Charles A. Philbrook, an employe of defendant. In the absence of Philbrook, Ed Salenski took over the job of supervising. Salenski, an employe of William Baumeister Construction Company, was considered by others to be a 'straw boss.' During the time he worked in defendant's plant, plaintiff worked at different places on both the first and second floors and in the basement of the 'bottle house.'

On the day of the accident hereinafter described, plaintiff and Frederick Koenig, Jr., another employe of Baumeister, were assigned to paint in the elevator shaft of the bottle house. They worked there until about 11 o'clock when Salenski directed them to leave that job and to start painting a wall on the first floor of the bottle house. Thereupon, they proceeded to the place where they were to work. The wall which they were to paint was an interior wall extending from the east wall of the building some 60 or 70 feet to the west, terminating at that point without joining any other wall at the west end. The wall ran parallel with the north wall of the building, forming a division between the north and south walls of the building or a sort of corridor with the north wall some 36 feet in width. Three conveyors, designed to carry empty beer cases from the second floor to casing machines on the first floor, slanted down from a hole in the ceiling of the first floor about 26 feet south of the wall described above. These conveyors consisted of a series of rollers on a metal frame on which the empty beer cases rolled. The conveyors ran at right angles to the wall to be painted and went through a hole therein 5 feet 6 inches from the floor into the other part of the building. The wall itself was 14 feet high. The first conveyor was 10 feet west of the east wall of the building; the second was 15 feet west of the first; and the third was 15 feet west of the second. The empty beer cases were made of cardboard and fiber and, while quite light in weight, could withstand considerable crushing pressure. The tops of the cases opened in the middle, and as the cases moved down the conveyors the tops were usually open. Before the cases reached the slanting conveyors on which they moved down by gravity, they traveled on an endless belt conveyor located on the second floor. When plaintiff and Koening reached the place where they were to paint on the north side of the interior wall, they proceeded to erect a scaffold on which to work. They found there three pieces of equipment, a steel tripod or 'tilly jack,' adjustable in height and weighing about 55 pounds; a heavy stepladder about 10 feet high and weighing about 60 pounds; and a 2 12 plank 16 feet long. They placed the tilly jack at the west end of the wall. The stepladder was placed near the east side of conveyor No. 3. The two were about 13 feet apart. They then placed one end of the plank on the second step from the top of the stepladder and the other end on a crossbar provided for that purpose on the tilly jack. As so placed, the plank was about seven or eight feet from the floor. It was about two feet from the wall. The conveyor at that time was loaded with empty cases. The men tested the clearance between the plank and the top of the cases and found it to be about four or five inches. To obtain a little more clearance, they placed a 2 4 under the end of the plank on the stepladder. This resulted in a clearance of about six inches over the cases then on the conveyor.

After completing the erection of the scaffold, the men went to lunch. During this time the conveyor was not running although it was loaded with cases. They returned about 12:30, and the conveyor still was not running. Salenski provided them with the necessary paint and plaintiff began painting on the tilly jack end of the plank and Koenig on the other end. They were facing the wall as they painted. After so painting about 15 minutes, something jarred the stepladder, and the scaffold leaned over toward the wall and rocked back and forth. Koenig yelled at plaintiff. Plaintiff either fell off the scaffold or jumped, and the plank also fell down, as the result of which plaintiff sustained the injuries for which he now seeks to recover damages.

It is conceded that both William Baumeister Construction Company and defendant are covered by the workmen's compensation act and that plaintiff has applied for and has received the compensation to which he is entitled from his employer pursuant to that act.

The questions presented by this appeal are:

(1) Did plaintiff's receipt of benefits from his employer under the workmen's compensation act bar his right to bring this action under the provisions of M.S.A. § 176.06, subd. 1?

(2) Does the evidence sustain a finding of defendant's negligence and that such negligence, if proved, constitutes the proximate cause of plaintiff's injury?

(3) Did the court err in admitting testimony tending to establish that beer cases had fallen off the conveyors or piled up on previous occasions?

(4) Did the court err in submitting to the jury the issue of whether defendant had furnished plaintiff with safe equipment?

(5) Did the court err in refusing defendant's requested instructions hereinafter mentioned?

(6) Did the court err in refusing to give the jury corrective instructions regarding remarks of counsel in his closing argument, which remarks are now claimed to be prejudicial?

1. Minnesota, standing alone, has adopted by statute, as a part of its workmen's compensation act, a provision, § 176.06, subd. 1, which has been the source of much troublesome litigation. Our cases construing this statutory provision are adequately reviewed in Gleason v. Geary, 214 Minn. 499, 8 N.W.2d 808; Swanson v. J. L. Shiely Co. 234 Minn. 548, 48 N.W.2d 848; and Volding v. Harnish, 236 Minn. 71, 51 N.W.2d 658. It would serve no useful purpose to repeat what we said there, and little more can be said which would aid the bench or bar in the application of this troublesome statute.

It is clear under the decisions of this court that this action is not barred by § 176.06, subd. 1. Defendant had no employes engaged in painting. It is true that it furnished the supervision in the person of Charles A. Philbrook, but otherwise the work of painting was entirely disconnected from the work of defendant's employes. Defendant contends that both defendant's employes and those of the Baumeister company were exposed to the same hazards so far as the conveyors were concerned, but that contention is not tenable because only the painters were exposed to the hazard created by the conveyors running under the scaffolding on which they worked. The only distinction between the facts in this case and those in Gleason v. Geary, supra, is that here the supervision was furnished by defendant and the scaffolding used was likewise furnished by defendant. As far as the work done by plaintiff was concerned, it was as completely separated from...