Morris v. E. Ry. Co. of Minn.

• Decision Date: 19 December 1902
• Parties: MORRIS v. EASTERN RY. CO. OF MINNESOTA.
• Court: Minnesota Supreme Court

88 Minn. 112

92 N.W. 535

MORRIS

v.EASTERN RY. CO. OF MINNESOTA.

Supreme Court of Minnesota.

Dec. 19, 1902.

Appeal from district court, Hennepin county; A. M. Harrison, Judge.

Action by Hugh M. Morris, by Edward H. Gunderson, his guardian ad litem, against the Eastern Railway Company of Minnesota. From an order overruling a general demurrer to the complaint, defendant appeals. Affirmed.

Syllabus by the Court

1. The complaint in a personal injury action held to state facts sufficient to constitute a cause of action.

2. The allegations found in such complaint distinguished from the facts before the court in Hefferen v. Railway Co., 48 N. W. 1, 526,45 Minn. 471.

J. A. Murphy, Heber McHugh, and Charles S. Albert, for appellant.

Ludvig Arctander and Victor Linley, for respondent.

COLLINS, J.

This appeal is from an order overruling a general demurrer to a complaint in a personal injury action brought by a guardian ad litem. It was alleged in this pleading that the defendant carelessly and negligently provided for the use of a minor in its employment, named Morris, aged 17 years, whom we shall hereafter call the ‘plaintiff,’ and his brother, a co-employé, a ‘flogging hammer,’ so called, to be used by them in connection with what is known as a ‘sideset’ (a cold-chisel with a handle attached), in cutting off rivets from the tank frame of a locomotive tender in the shop in which they worked; that this hammer was manufactured by the defendant itself; that it was defective and dangerous, in that the surface of its head was not smooth, but contained several holes or indentations, which made it a dangerous, unsafe, and unfit tool; that these defects were the result of careless and improper manufacture; that, during the process of manufacturing, the defendant could readily have discovered these holes or indentations, in the exercise of ordinary care and diligence; that, had said hammer been properly inspected by experienced men before it was turned over to defendant's employés, these defects could have readily been discovered, and could have been remedied, and the danger removed; that neither the plaintiff nor his brother knew of this defective condition of the hammer, or of the existence of these holes or indentations in its head, nor could they, or either of them, have discovered the same by the exercise of reasonable care, and further that, had they detected these defects, neither knew, understood, or appreciated the danger incident to using it upon the side-set, or the probability of chips or slivers being formed thereon by reason of the defective condition of the hammer, or the danger that such chips or slivers might be knocked off, nor did they know of the danger to be anticipated in case they should be. The injury received by the plaintiff was to his eye, and it was alleged that this was caused by the knocking off and flying of a sliver or chip from the side-set which plaintiff was holding when it was struck by the hammer in his brother's hands.

It is contended by counsel for defendant that in no manner do the facts alleged in this complaint differ from those established at the trial and considered in Hefferen v. Railway Co., 45 Minn. 471, 48 N. W. 1, 526, in which it was held that a master who provides and keeps proper tools for the use of his servants, whose duty it is to select such as they may require for their work, is not, in general, responsible if a servant voluntarily uses a tool which has become obviously defective and unfit for use, and such servant is injured by reason of such defect. We do not regard that case,...