Mitton v. Cargill Elevator Co.
| Decision Date | 19 December 1913 |
| Docket Number | 18,270 - (140) |
| Citation | 144 N.W. 434,124 Minn. 65 |
| Parties | IRENE MITTON v. CARGILL ELEVATOR COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by the administratrix of the estate of Lorne Mitton, deceased, to recover $7,500 for the death of her intestate. The answer admitted that there was no guard or rail on the left-hand side of the stairs leading down to defendant's engine room and no fence or guard around the fly wheels therein; it further alleged that the intestate was well acquainted with the engine house and the position of the stairs and engine and that when he went there he went at his own risk and assumed the risk thereof. The case was tried before Dickinson, J., who when plaintiff rested granted defendant's motion to dismiss. From an order denying her motion for a new trial, plaintiff appealed. Reversed and new trial granted.
Guard for dangerous machinery.
1. The evidence was sufficient to justify a finding that defendant was negligent in failing to provide a railing on a stairway leading to an engine room below, and in failing to guard dangerous machinery therein. Plaintiff's intestate was not an employee of defendant, but was requested by it to go down into the engine room and turn off the engine. Held that defendant owed him the duty to use ordinary care in relation to guarding the stairway and the machinery. Whether chapter 288, laws 1911, is for the benefit of any but employees is not decided.
Proximate cause of death question for jury.
2. The evidence did not leave the cause of death a matter of speculation or conjecture, but was sufficient to justify submitting to the jury the question whether defendant's negligence was the proximate cause of the death.
Contributory negligence -- assumption of risk.
3. It did not conclusively appear that plaintiff's intestate was guilty of contributory negligence or that he assumed the risk.
Cumulative evidence -- photograph.
4. It is within the discretion of a trial court to limit the undue introduction of cumulative evidence, but in this case it is held that certain photographs were not properly excluded on this ground, or upon the ground that they would not assist the jury. When a competent witness testifies that a photograph is a correct representation of the objects it purports to portray, it is not for the court to decide either that the witness is unworthy of belief, or that the photograph is misleading. In such case it is error for the court to exclude the photograph as misleading.
O'Brien Young & Stone, for appellant.
Harris Richardson and Walter Richardson, for respondent.
This action was brought by the administratrix of the estate of Lorne Mitton, her deceased husband, to recover damages for his death, alleged to have been caused by the negligence of defendant. At the close of the plaintiff's case, the action was dismissed. Plaintiff appeals from an order denying a new trial.
The chief question involved is whether or not the trial court erred in dismissing the action. The theory upon which the trial court acted, and the position of respondent on this appeal, is that no causal connection was shown between the negligence of defendant and the death of plaintiff's intestate, that the evidence left the cause of death a matter of conjecture.
The following facts appeared from the evidence as it stood when plaintiff rested: Defendant owns and operates a grain elevator at Brown's Valley. Across a driveway from the elevator was the office, and the engine room. This engine room adjoined the office on the west, the only entrance being through the office. The floor of the office was on a level with the driveway, while the floor of the engine room was 6 feet below. Access to the engine room was from the office down a steep stairway. The engine room was 8 feet in length by 7 feet 6 inches in width. The stairway consisted of eight steps, each 2 feet 3 inches long, and 6 inches wide, set into 2X6 side runners. It was against the engine room wall on its north or right side, while on the other side there was no rail or other guard. In descending the vertical distance of six feet, it covered a lateral distance of 3 feet 9 inches. A gasolene engine stood on a seven-inch concrete base on the floor of the room. Its length, including the cylinder, cranks, gearing and fly wheels, was substantially 5 feet. The cylinder was at the north end, and at its nearest point a little over a foot from the center of the bottom step of the stairway. Its top was two feet and a half above the floor. The cranks, gearing and flywheels were at the south end. The flywheels were 18 inches apart, and were hung on the crank shaft just outside of the engine frame. Each was 41 inches in diameter. The north edge of the left hand or east flywheel was 8 inches from the bottom step of the stairway. Midway between the two flywheels was the crank and the connecting rod bearing, while just outside of the crank was a series of cog-wheels. There was no hood or other guard.
Immediately to the left of the stairway and close to the west wall of the room was a small stove. Further to the left was a water-tank which contained water for cooling the engine, and was 7 feet 6 inches in height, 2 feet 6 inches in diameter. A half inch (interior diameter) iron pipe led from the top of the cylinder to the top of this water-tank. This pipe carried the heated water from the cylinder jacket back to the tank. It was connected with the middle of the top of the cylinder, rose vertically a distance of 4 feet, then turned at right angles and ran to the top of the cooling tank, to which it was connected by a short length of rubber hose.
Lorne Mitton was not an employee of defendant. He was a friend of defendant's superintendent in charge of the elevator. On the afternoon of September 19, 1911, he came into the yard of the superintendent's residence, close to the elevator, and had some conversation with the latter, who asked him to "shut down the engine" which was running. Mitton thereupon proceeded to the office and engine room. A few moments later, the superintendent heard the engine make a peculiar noise, and heard Mitton "holler." He rushed into the engine room and found Mitton caught in the flywheels at the south end. He was standing between the two flywheels in an upright position, facing toward the south wall of the room. His right foot was against the cement base, and his left foot was caught in the right hand flywheel, the one farthest from the stairway. He was extricated, and carried up stairs. The injuries received caused his death four days later.
The electric switch used in starting and stopping the engine was in a cupboard in the southwest corner of the room, at a convenient distance from the floor. To reach it from the stairway it was necessary to go around the north end of the engine, and along a passageway between the engine and the west wall, to the cupboard. Using the switch was the only practicable way of stopping the engine. It appeared that Mitton was more or less familiar with the engine room, and knew where the switch was and how to reach it. When the superintendent discovered Mitton caught in the flywheel, the iron pipe leading from the cylinder jacket to the water-tank was found torn down, twisted and broken, a part of it had been carried in a direction away from the stairway, and a piece had been dragged into the right-hand flywheel, and had become wrapped around the...
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