Pederson v. City of Rushford

• Decision Date: 18 July 1889
• Citation: 41 Minn. 289
• Court: Minnesota Supreme Court
• Parties: LARS PEDERSON <I>vs.</I> CITY OF RUSHFORD.

Page 289

41 Minn. 289

LARS PEDERSONvs.

CITY OF RUSHFORD.

Supreme Court of Minnesota.

July 18, 1889.

Appeal by plaintiff from an order of the district court for Fillmore county, refusing a new trial after trial before Farmer, J., and a dismissal ordered at the close of plaintiff's case.

H. S. Bassett, Gray & Thompson, and G. W. Rockwell, for appellant.

N. P. & W. E. Colburn and H. R. Wells, for respondent.

GILFILLAN, C. J.

Action for injuries to the person, caused by the alleged negligence of the defendant. At the close of plaintiff's case the court below, on the motion of the defendant, dismissed the action. As the decision of the court must be sustained on another ground, it may be conceded, without determining, that the overseer of highways who set plaintiff to do the work at which he was injured was in that matter the officer and agent of the city, and that setting plaintiff to work under the circumstances was an act for the consequences of which defendant would be liable, unless plaintiff assumed the risks from which he was injured. That he did assume those risks the evidence shows beyond any question. He was, and for a few days before he was injured had been, at work with others, under the overseer of highways, as a laborer in digging earth from a bank of earth, and loading it upon wagons to be deposited upon the roads or streets for the purpose of filling and grading. The bank from which they were digging the earth had been dug away so that the side or face from which they were digging was nearly perpendicular, from 30 to 35 feet high, and 50 or 55 feet long. It was composed of different kinds of material, — at the bottom hard clay to a height of 8 or 10 feet; above that, clay and sand and large rocks or stones, mixed; and above that common soil. In digging the earth, instead of working from the top downwards, they, as the plaintiff described their way of working, commenced at the bottom, and excavated or "mined" under, so that when sufficient of the clay or hard material at the bottom was removed, the material above would fall of its own weight. It was while they were thus at work, excavating or "mining" under, that the material above them came down and injured plaintiff. That work of that kind done in that way is dangerous must be apparent to the commonest intelligence. No skill or science is required to inform one that material such as composed the upper part of this bank, — clay, sand, and rocks or stones intermixed, and common earth,...