Perras v. A. Booth & Co.

• Decision Date: 04 January 1901
• Citation: 82 Minn. 191,84 N.W. 739
• Parties: PERRAS v. A. BOOTH & CO.
• Court: Minnesota Supreme Court

82 Minn. 191

84 N.W. 739

PERRAS

v.A. BOOTH & CO.

Supreme Court of Minnesota.

Jan. 4, 1901.

Appeal from district court, Hennepin county; David F. Simpson, Judge.

Action by Elise L. Perras, administratrix of C. Perras, against A. Booth & Co. Verdict directed for defendant. From an order denying a new trial, plaintiff appeals. Reversed.

Syllabus by the Court

1. It is the duty of the master to furnish his servant a reasonably safe and suitable place in which to perform his work, and to keep and maintain it in such condition,-not to guard and protect from the negligent acts and conduct of fellow servants, but to put the place in a reasonably safe condition, and omit no personal duty to keep and maintain it in such condition.

2. In this action one Super was defendant's foreman, having general charge and control of its business, with authority to direct the employés of defendant when and where to work, and what particular duty to perform. On the day complained of, he had ordered plaintiff's intestate to perform certain work, and was aware of the fact that prior to the commencement of such work the place of performance thereof was put in a safe and proper condition to do the same. After so ordering deceased to do and perform such work, Super, without notice or warning to him, removed one of the instrumentalities used in the performance thereof, and thereby rendered the place of performance dangerous and unsafe, in consequence of which the employé was killed. Held, that the questions (1) whether deceased was guilty of contributory negligence; (2) whether the act of Super was one of the ordinary risks of the employment of deceased, and assumed by him; and (3) whether Super was, in the act complained of, acting in the capacity of foreman and vice principal, or as a fellow servant,-should have been submitted to the jury, under the evidence produced at the trial, and that the trial court erred in directing a verdict for defendant. A. B. Jackson and P. M. Babcock, for appellant.

Kitchel, Cohen & Shaw, for respondent.

BROWN, J.

Action to recover for the death of plaintiff's intestate, caused by the alleged negligence of defendant. A verdict was directed for defendant in the court below, and plaintiff appeals from an order denying a new trial. Plaintiff's intestate was an employé of defendant, and received injuries while engaged in the discharge of his duties which resulted in his death. The negligence charged in the complaint as the cause of the death is the failure on the part of defendant to provide deceased with suitable and safe tools, instruments, and instrumentalities, and a reasonably safe and auitable place, for the performance of his duties. The facts are substantially as follows: At and for some time prior to the date of the accident, defendant, a corporation, owned and maintained a warehouse in the city of Minneapolis, used for the storage of its goods and property, and for the storage of the goods of other parties. The building was several stories high, and in the basement thereof were cold-storage rooms. A door opened from the rear of the building, on the ground floor, upon a railroad side track extending along the building, inside of which door was a freight elevator, used in connection with receiving goods from railroad cars, and conveying them either to the upper stories, or down in the basement to the cold-storage rooms, as the nature of the goods required. It was the custom of defendant, in unloading goods from the railroad cars, to connect the sill of the door with the floor of the car by an iron plate, forming an inclined plane from the car to the door sill, which was a few inches lower than the floor of the car. When so unloading cars the elevator was held stationary and on a level with the door sill, so that the hand trucks used in conveying the goods from the car would run down the iron plate onto the elevator without obstruction. The elevator shaft extended into the basement about 10 feet. The doorway was protected by an outer door and an inner gate, but was not kept closed when the elevator was being used in connection with unloading cars; and, with the elevator away during such time, there was nothing to obstruct the entrance to the elevator shaft from this outer door. Defendant is a corporation, and conducted the business connected with its warehouse through a foreman and a manager. One Super was foreman and had general charge of the employés of defendant, and the performance of their work and duties, and gave orders to them as to what to do, and the manner of doing it. Plaintiff's intestate was a carpenter, and had been in defendant's employ for a number of years, performing such work from time to time as was required of him by the foreman. While not engaged in carpenter work he frequently assisted in unloading cars, when ordered to do so. On the day of the accident the foreman ordered him to assist another employé in unloading a car of fish. He complied with the order, and proceeded to the car with the other employé, and commenced the work of transferring the fish therein to the cold-storage rooms in the basement of the building. Before commencing the work, plaintiff's intestate opened and fastened the outer door leading into the elevator shaft. The fish in the car were in boxes of different sizes, which were transferred into the building by loading them upon a hand truck, and wheeling the truck down the iron plate connecting the car with the elevator, and lowering the elevator into the basement. The elevator was an essential instrumentality in doing this work, and was kept stationary and on a level with the door sill while the work was being carried forward. Super, the foreman, was superintending the work, and was in and about the car, giving orders and directions with reference thereto. After the work had been going on for some time, one O'Hair, an employé of another concern, occupying rooms in the building, called out from a second-story window that he wanted the use of the elevator. The foreman, Super, replied to him, from the car door, that he could not have it, as they were using it in connection with unloading the car, and he then passed from the car towards the elevator door. On being informed by Q'Hair that he wanted the elevator but a very short time,-two minutes,-Super, without notice or warning to the men in the car, pulled the elevator up to where O'Hair was, and assisted in removing some apples to the third floor. In the meantime the men in the car continued at their work, and, in following the directions of the foreman, loaded a number of boxes of fish upon the truck, and wheeled it out upon the iron plate, and prepared to run...