Mitton v. Cargill Elevator Company
| Decision Date | 28 May 1915 |
| Docket Number | 19,236 - (152) |
| Citation | 152 N.W. 753,129 Minn. 449 |
| 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 case was tried before Waite, J., and a jury which answered in the affirmative the questions (1) whether decedent fell from the steps upon the engine, (2) whether the negligence of defendant was a cause of his so falling into the engine, and (3) whether the fall was due in part to decedent's own fault, and returned a verdict for $5,000. From an order denying its motion for a new trial, defendant appealed. Affirmed.
Res gestae.
1. A certain declaration held, on the facts stated in the opinion admissible as being a part of the "res gestae." The evidence justified the jury in finding that the superintendent of defendant requested plaintiff's intestate to turn off the engine in the engine room of the elevator of defendant.
Vice principal -- holding on former appeal.
2. In making this request defendant's superintendent, on the evidence, acted for defendant, and not for himself personally, and in obeying the request plaintiff's intestate was performing a service for defendant. The decision on the former appeal to this effect, and holding that defendant owed plaintiff's intestate the duty to use ordinary care in relation to guarding the stairway and machinery, adhered to.
Negligence -- assumption of risk -- contributory negligence.
3. The evidence justified the jury in finding defendant negligent in finding that the death of plaintiff's intestate was caused by the negligence of defendant, and in finding that plaintiff's intestate did not assume the risk and was not guilty of contributory negligence.
Refusal of requests for instructions.
4. There was no error in refusing requests for instructions, or in the instructions as given.
Harris Richardson and Walter Richardson, for appellant.
O'Brien, Young & Stone, for respondent.
On the first trial of this case there was a dismissal on the motion of defendant. An order denying a new trial was reversed by this court. Mitton v. Cargill Elev. Co. 124 Minn. 65, 144 N.W. 434. The case was again tried and the issues submitted to a jury, with a $5,000 verdict for plaintiff as the result. Defendant appeals from an order denying its motion for a new trial.
The facts are quite fully stated in the opinion on the former appeal and most of the questions now argued were disposed of by that decision. It is unnecessary to review again the evidence tending to show how the death of Mitton was caused and bearing on the question whether the cause was a matter of speculation or not, and the questions of contributory negligence and assumption of risk. We refer to the former opinion for a statement of these evidentiary facts, which were in no material aspect different on the second trial.
Defendant urges strenuously that Mitton was a mere licensee, or volunteer, and hence that defendant owed him no duty, save to refrain from acts of actual negligence rendering the premises dangerous, or, as otherwise expressed, not to wantonly or wilfully inflict injury upon him. We held in the former opinion that Mitton went into the engine room, where he met his death, at the request of defendant and to perform a service for it, and that it owed him the duty to use ordinary care in relation to guarding the stairway and the machinery.
It is now contended that there was no competent evidence of any request to Mitton by Bailey, the superintendent of the elevator, to turn off the engine, and, even if Bailey did so request, that the service asked was for his own purposes, and not a service for the defendant.
The only evidence of a request by Bailey, was that of a witness who was permitted to testify that Bailey, some 10 to 20 minutes after the accident, said that he told Mitton to shut off the engine. This declaration was made in response to a question as to how the accident happened, and after Mitton had been extricated from the engine, carried up stairs and placed in a chair in the driveway. Bailey had telephoned for doctors, procured a coat to put under Mitton's head and water to revive him. It was at this time, while Bailey, the witness, and others were attending to the injured man, that Bailey made the statement testified to by the witness. If this evidence was properly admitted it is ample to justify the jury in finding an invitation and request by Bailey, as the latter was on the stand and was not asked to deny making the statement. Under...
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