Myhre v. Tromanhauser

• Decision Date: 02 June 1896
• Docket Number: Nos. 9776 - (82).,s. 9776 - (82).
• Parties: OLE MYHRE v. JESSE H. TROMANHAUSER and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 541

64 Minn. 541

OLE MYHRE v. JESSE H. TROMANHAUSER and Others.¹

Nos. 9776 - (82).

Supreme Court of Minnesota.

June 2, 1896.

Action in the district court for Hennepin county. The jury rendered a verdict in favor of plaintiff for $2,000. From an order, Jamison, J., denying defendants' motion for a new trial, provided plaintiff consented to a reduction of the verdict to $1,000, to which plaintiff consented, defendants appealed. Affirmed.

A. B. Jackson, for appellants.

W. S. Dwinnell, for respondent.

CANTY, J.

Most of the facts necessary to an understanding of this case are recited in the opinion in the case of Smith v. Tromanhauser, 63 Minn. 98, 65 N. W. 144. The plaintiff in this action is the "Meyer" therein mentioned. He built the staging in the bin in which the injuries to the parties occurred; worked in this bin in building up the partition walls of the elevator; and when the heavy cross beam fell, and broke down the staging, he, with the others, was precipitated to the bottom of the bin. This action was brought to recover damages for the injuries so received by him. He had a verdict, and from an order denying a new trial defendants appeal.

It is contended by appellants that there is no substantial difference between this case and the Smith Case, either in the evidence or the principles involved, and that the verdict for plaintiff cannot be sustained. We cannot agree with appellants. Smith himself was the very man who, under the orders of Tromanhauser, took the crowbar and pried the end of the beam off the wall, thereby causing it to fall and break down the scaffold. And in his case we held that, even if Tromanhauser was guilty of negligence in giving the order to pry the beam, Smith was equally guilty of negligence in obeying it; that Smith was an old experienced carpenter, who thoroughly understood the kind of work in which he was engaged, and knew all the dangers of executing the particular task in hand as well as did Tromanhauser. We held (as it was there expressed) that, under these circumstances, Smith assumed the risk of his own positive act in prying the beam off the wall.

But the testimony in the case at bar tends to prove that this plaintiff had nothing to do with the attempted insertion of the beam in the mortises cut in the partition walls, except in one instance, when Smith or Norton called him to block up the lower end of the beam, which they had been trying to insert in the mortise. After he had blocked up the end of the beam by placing some pieces of scantling under it, he went on with his work of cribbing or building up the partition walls, until Norton told him to get out of the way, as the bin was small, and he had...