Nustrom v. Shenango Furnace Company
| Decision Date | 24 July 1908 |
| Docket Number | 15,673 - (179) |
| Citation | 117 N.W. 480,105 Minn. 140 |
| Parties | VICTOR NUSTROM v. SHENANGO FURNACE COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $2,000 for personal injuries alleged to have been received by reason of defendant's negligence in furnishing unsafe fuse. The case was tried before Cant, J., and a jury which rendered a verdict in favor of plaintiff for $1,500. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.
Negligence of Master -- Question for Jury.
In an action to recover for personal injuries caused by the explosion of a blast, it is held that the question of defendant's negligence in furnishing an unfit and unsafe fuse and plaintiff's assumption of risk and contributory negligence were for the jury.
E. C Kennedy, for appellant.
S. F White and N. H. McMahon, for respondent.
Plaintiff seeks to recover damages for personal injuries sustained by him by reason of the negligence of the defendant, and alleges: Defendant, operating an iron mine at the time of the injury to plaintiff, was engaged in digging and blasting out a room for a stable. There were two kinds of fuse for use in the mine -- one for use in dry places, and another, more costly, for use in wet places. Plaintiff was set to work in a wet place, and the fuse to be used there should have been such as was furnished for wet places. The plaintiff protested against the use of the fuse furnished, and asked for proper fuse. Defendant refused, and advised plaintiff that the fuse was safe and as good to use as the other, if well greased.
On the morning of February 11, 1906, plaintiff and his fellow workmen had made three drill holes in the side of the stable, filled the same with dynamite, prepared the fuse furnished by defendant to fire the dynamite, greased the same in the manner directed by the defendant and commended as rendering the use thereof safe, lit the fuse, and went away. After waiting about ten minutes for the smoke to clear out of the stable, so that they could continue their work, they returned to the place and found that two of the holes had exploded. The third hole thereafter exploded. Plaintiff was injured in the face and eyes.
The answer admitted that the defendant was a corporation operating the mine, and that plaintiff was in its employ and was injured, but denied that the injury was caused by its carelessness and negligence, or that plaintiff was injured to the extent alleged in the complaint. The defendant further alleged that the work in which plaintiff was engaged was such work as was incident to his employment, and put in issue all allegations of the complaint not admitted. The reply was a general denial of the new matter. The jury returned a verdict for $1,500. The appeal was taken from the order denying the usual alternative motion.
1. Defendant's evidence tending to show that only one kind of fuse was used, and that such fuse was fit and proper, was abundant and cogent. It was, however, subject to legitimate criticism, and its weight was a matter of argument. Plaintiff's own testimony, on the other hand, tended to sustain the allegations of negligence in his complaint, and to show that two kinds of fuse were furnished and used, one soft, the other solid, and that the fuse used was neither fit nor proper. Cf. Laitnen v. Shenango Furnace Co., 103 Minn. 88, 114 N.W. 264. His brother's evidence, although not so direct, was in corroboration. Within the familiar rule, there was evidence enough as to this point of controversy to support the verdict, and the refusal of the trial court, who saw and heard the witnesses, to disturb it.
2. The gist of the controversy is whether the evidence shows that as a matter of law the plaintiff appreciated and knew the risks and dangers attending the use of the fuse in question, and assumed the risk of using it. Defendant contends: Plaintiff according to his own version, had been at work for ten months using the different kinds of fuse, and knew that the fuse furnished here was defective. He continually complained that he had missed blasts very frequently. He not only knew the condition of the fuse, if it was in fact safe or defective, or that there was danger in using it. He knew and appreciated the danger. Therefore there was no question of fact for a jury as to assuming the risk. When he complained to the captain, there was no promise of a substituted fuse, and no assurance of safety. The captain simply said: "Grease it good, and it will go." His continual use of the instrumentalities must have made it known...
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