Neubauer v. N. Pac. R. Co.

• Decision Date: 21 January 1895
• Parties: NEUBAUER v. NORTHERN PAC. R. CO.
• Court: Minnesota Supreme Court

60 Minn. 130

61 N.W. 912

NEUBAUER

v.NORTHERN PAC. R. CO.

Supreme Court of Minnesota.

Jan. 21, 1895.

(Syllabus by the Court.)

1. Held, the verdict is sustained by the evidence.

2. Held, further, that large ice tongs are not in such common use that the proper manner of constructing them is a matter of such common knowledge as to preclude the use of expert testimony as to the same.

Appeal from district court, Ramsey county; Charles D. Kerr, Judge.

Action by Wenzel A. Neubauer against the Northern Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. H. Mitchell, Jr., Tilden R. Selmes, and C. D. & Thos. D. O'Brien, for appellant.

John H. Ives, for respondent.

CANTY, J.

The plaintiff was a servant of defendant, employed by it in its warehouse, and occasionally in “icing” its refrigerator cars. Its ice house was beside the track. At one side of the ice house was a shaft or tower, in which the ice was raised. It was then pulled out on a slide or skid to a platform, and there chopped into smaller pieces. These pieces were then conveyed on another skid into the car. The platform was about 11 feet above the ground, and there were no guards or rails around it. On the day in question the plaintiff was engaged in pulling the ice out of the shaft upon the platform, and chopping it into smaller pieces. The pieces, as they came from the shaft, weighed several hundred pounds. He seized them with a large pair of ice tongs, and pulled them along on the skid. He seized one piece which he testified weighed between 400 and 500 pounds, endeavored to pull the same upon the platform, when the tongs lost their hold, which caused him to lose his balance and fall off the platform, down upon the ground, by reason of which he was injured. He brought this action to recover damages for such injury, and alleges that the tongs were defective and insufficient, which caused them to lose their grip on the piece of ice, and that defendant was negligent in failing to furnish him with proper tongs. On the trial, plaintiff recovered a verdict for $400, and from an order denying a new trial defendant appeals.

We are of the opinion that there is sufficient evidence to sustain the verdict. The jury were justified by the evidence in finding, not only that the tongs were out of repair, but also that they were defectively constructed, and that the points were never properly made or shaped. It was a question for the jury whether or not plaintiff...