Miller v. Macalester College

• Decision Date: 04 May 1962
• Docket Number: Nos. 38270 and 38271,s. 38270 and 38271
• Citation: 115 N.W.2d 666,262 Minn. 418
• Parties: Peggy J. MILLER, Respondent, v. MACALESTER COLLEGE, Appellant, Orie L. Hamm, d.b.a. Adjustomatic Scaffold Company, Appellant.
• Court: Minnesota Supreme Court

Page 666

115 N.W.2d 666

262 Minn. 418

Peggy J. MILLER, Respondent, v. MACALESTER COLLEGE, Appellant,

Orie L. Hamm, d.b.a. Adjustomatic Scaffold Company,

Appellant.

Nos. 38270 and 38271.

Supreme Court of Minnesota.

May 4, 1962.

Syllabus by the Court

1. Where college instructor directed student as part of her classwork to assist other students in removing electric light fixtures from ceiling of fieldhouse, requiring movable, sectional scaffold some 35 feet in height furnished by college for such purpose, Held jury might find college liable to student for injuries sustained by her when scaffold fell because of its failure to exercise reasonable care in ascertaining whether scaffold was safe for such use; to instruct student as to proper use thereof; to warn her as to dangers and risks attendant upon its improper use; and to provide reasonable supervision of work to be performed.

2. Evidence considered and held adequate to support finding that instructor of defendant college in charge of plaintiff's classwork had failed to exercise reasonable care in providing a reasonably safe scaffold for her use; in supervising and managing the work in his charge; in not warning plaintiff of any hazards or dangers not apparent to or readily observable by her; in not instructing plaintiff as to the proper and safe methods of using the scaffold; and in connection with the work incident to and part of the general project being performed by plaintiff under his direction.

3. Evidence considered and held adequate to support finding that scaffold company had failed to exercise reasonable care in furnishing equipment which could be used with safety in work for which company knew or should have known it was intended; and in warning intended users as to risks attendant upon its improper use, particularly where it knew or should have known that they were inexperienced in such matters.

4. Hanrahan v. Safway Steel Scaffold Co., 233 Minn. 171, 46 N.W.2d 243, distinguished.

5. Where plaintiff, a college student, was inexperienced in the use of movable, sectional scaffold which instructor had directed members of class to use in removing ceiling light fixtures from fieldhouse with dirt floor as part of classwork and was unaware of any risks or dangers in connection with such use; and any such dangers would not have been obvious to a reasonably prudent person; where she followed the directions of her instructor with reference thereto; and where she was at no time instructed or warned that it might be dangerous to remain on the scaffold while it was being moved from place to place on dirt floor, Held trial court did not err in submitting to jury issue as to her contributory negligence or assumption of risk.

6. Reception in evidence of advertising folders of other scaffold manufacturers in conjunction with testimony of expert witness as to safety practices and recommendations of manufacturers in use of such scaffolds Held not to constitute prejudicial error where defendant, who objected to their admission, had testified to the same practices and recommendations in the industry.

7. Where scaffold company at time of delivery of scaffold to college obtained a receipt therefor signed by building custodian which acknowledged that scaffold had been delivered to his care, Held indemnity provision on reverse side of such receipt, to which his attention was not directed and which had never been shown to or executed by proper authorities of college, not binding on college.

Lipschultz, Altman, Geraghty & Mulally and James H. Geraghty, St. Paul (Macalester College), Stringer, Donnelly & Sharood, St. Paul (Orie L. Hamm), for appellant.

Charles A. Bassford, Crane Winton, Richards, Montgomery Cobb & Bassford, Minneapolis, for respondent.

THOMAS GALLAGHER, Justice.

Action for injuries sustained by plaintiff, Peggy J. Miller, a student at Macalester College, when she fell from a movable, sectional scaffold furnished the college on a rental basis by defendant Orie L. Hamm, d.b.a. Adjustomatic Scaffold Company. At the time of the accident, the scaffold was in use for the removal of electrical spotlights and fixtures from the ceiling beams of the college fieldhouse. Plaintiff recovered a verdict against both defendants in the total sum of $21,852.37. Defendants' subsequent motions for judgment notwithstanding the verdict or for a new trial were denied and both have appealed to this court from the order to such effect. Defendant scaffold company also appealed from the judgment entered.

On appeal the college contends that there was no evidence of negligence on its part. The scaffold company contends that (1) there was no evidence of any defects in the scaffold supplied by it; (2) no duty rested upon it to warn of dangers in its use in a manner which could not have been reasonably anticipated; and (3) the court erred in receiving over objection advertising pamphlets of another scaffold company, and in rejecting the portion of the rental agreement covering rental of the scaffold containing a provision wherein the college agreed to indemnify the scaffold company for any damages arising out of the scaffold's use. Both defendants further contend that, as a matter of law, plaintiff was guilty of contributory negligence and assumption of risk in using the scaffold in a manner which involved substantial danger when she might have adopted a course free from danger.

The accident occurred May 16, 1958. At that time, plaintiff, then 24 years of age, was a registered student in the college. As a member of a class in its speech-drama department she was required to participate in a dramatic production and chose to assist with a centennial pageant to be presented in the college fieldhouse under the direction of Douglas P. Hatfield, an instructor in the department. She was assigned to the lighting crew. The scaffold was rented by the college for use in the installation of certain spotlights or fixtures in the ceiling of the fieldhouse and for their removal after completion of the production. Mr. Hatfield, who made all rental arrangements for the scaffold at the time, had instructed the scaffold company merely that he required a movable scaffold which could be erected to a height of 35 feet. Nothing was said as to the purpose for which it was to be used.

On May 6, 1958, the unassembled sections of the scaffold and the wheels therefor were delivered by Mr. Hamm to the fieldhouse of the college and there turned over to a Mr. Norman Olson who at the time was employed by the college as a custodian for this building. It is not disputed that at the time of the delivery no instructions, either written or oral, were given to anyone as to the assemblage or use of the scaffold. Students of the speech-drama class then joined in assembling the scaffold. The 4 wheels, each approximately 8 inches in diameter, and attached to stems with spring-steel rings thereon, were inserted into hollow tubular posts in the bottom section of the scaffold. As the wheel stems were thus inserted, the spring-steel rings tightened within the tubular posts so that the wheels would not drop off when the scaffold was lifted from the ground.

On May 16, 1958, the day following completion of the centennial celebration production, students of the speech-drama class, including plaintiff, assembled with instructions to remove the spotlights and electrical fixtures. Plaintiff then claimed to the second section of the scaffold where she seated herself in the center. A student on the section above then removed the spotlights or fixtures and handed them down to plaintiff and she in turn handed them down to the ground crew. While the work was being done, the scaffold was rolled on its wheels from place to place on the dirt floor of the fieldhouse. While the scaffold was being moved in this fashion, its front wheels dropped into a small trench dug for the purpose of concealing electrical cables in the floor. This drop caused the front of the scaffold to incline forward with the rear wheels off the floor. While in this position, the wheels dropped from the scaffold and, as the scaffold then inclined backward, the absence of the wheels caused it to topple completely to the ground, throwing plaintiff therefrom and causing the injuries for which this action was instituted.

The evidence discloses that Hatfield had had no previous experience with scaffolds; that he had given no specifications to the scaffold company, beyond telling it that the scaffold should be movable and rise to a height of 35 feet; and that he had instructed his students that they should be sure to sit down on the scaffold while it was being moved and that it should be moved slowly. He testified further that he had inquired as to instructions on the use of the scaffold but that none had been delivered; that immediately after the accident he had observed that the two wheels to the rear of the scaffold had become disconnected.

Mr. Hamm testified that he had received no information from the college as to the intended use of the scaffold; that he had never dealt with the college before; that in his business he usually dealt with various types of contractors in the building business; that when he delivered the scaffold to the college he drove his truck with the scaffold equipment thereon into the fieldhouse and turned all of such equipment over to Olson who was in charge of the building; that prior to such delivery he had casually checked the wheels and that all of them seemed to be in good condition; that if the wheels were not defective and had been properly inserted they would not fall off the scaffold when it was lifted from the ground; that at the time of delivery he gave no written or oral instructions to Olson or anyone else as to the use or assemblage of the scaffold. Because the various sections and wheels were interchangeable and had been separately stored after being returned to the scaffold company, he could give only general...