Poczerwinski v. C. A. Smith Lumber Company
| Decision Date | 07 August 1908 |
| Docket Number | 15,682 - (187) |
| Citation | 117 N.W. 486,105 Minn. 305 |
| Parties | JOHN POCZERWINSKI v. C. A. SMITH LUMBER COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $25,300 for personal injuries. The case was tried before John Day Smith, J., and a jury which rendered a verdict in favor of plaintiff for $4,620. From an order denying a motion for judgment notwithstanding the verdict or for a new trial defendant appealed. Affirmed.
Evidence -- Negligence.
In a personal injury action, it is held that the evidence fairly tended to sustain the charge of negligence as alleged in the complaint and that the verdict is sustained by the evidence.
Protection of Machinery -- Evidence.
The question being as to whether a certain saw was properly protected, evidence that another saw of similar character but different size, situated in the same mill, was differently and more securely protected by a different kind of covering, is admissible.
Instructions to Jury.
Certain rulings and instructions considered, and held not prejudicial to the appellant.
Keith, Evans, Thompson & Fairchild, for appellant.
Dodge & Tautges and H. E. Fryberger, for respondent.
The respondent was injured while in the employ of the defendant, and recovered a verdict for $4,620. The appeal is from an order denying a motion for judgment or for a new trial.
The respondent was about twenty one years of age, had been in this country one year, understood but little English, and had never before worked about machinery. He was injured while working at a resawing machine which recut slabs which were fed into it by means of rollers. The saw (a band saw from twenty to thirty feet long and eight inches wide) was stretched over and revolved upon two wheels, each about five feet in diameter, and situated ten feet apart. Between these wheels was a conveyer, which contained the rollers which carried the slabs into and beyond the saw. The wheels were boxed, and on the side nearest the saw there were removable panels, which had to be taken out when the saws were changed. To operate the saw required a head sawyer and three assistants. The head sawyer and two assistants worked in front of the saw, and the other assistant, in this instance the respondent, worked at the back of the saw. His principal duty was to stand by the rollers and take therefrom the slabs which were large enough to be passed through the saw again. He also at times did other work under direction of the chief sawyer. On April 15, 1907, while engaged, as respondent claimed, in picking up pieces of wood from the floor, the box "burst," and one of the panels flew out, struck his leg, and inflicted the injuries for which he claims damages. But the appellant claimed that at the time of the injury the respondent was engaged in removing the panel while the saw was in motion, and that through his carelessness one end of the panel came in contact with the saw and threw it violently against him. It will thus be observed that there was a controversy between the parties as to the way in which the accident happened. The appellant contends that the respondent was allowed to recover upon a ground of negligence not alleged in the complaint.
1. After describing the machine, the plaintiff alleged in the complaint that the defendant negligently (a) ordered, caused, and permitted plaintiff to work in close proximity to dangerous machinery; (b) failed to furnish plaintiff with a safe place in which to perform his work; (c) failed to instruct plaintiff as to the dangers, perils, and hazards of his employment; (d) failed to furnish a competent and skilful person to supervise and direct plaintiff as to his duties; and (e) knowingly furnished an incompetent, unskilful, and unfit superintendent. It was also alleged that the defendant negligently "placed guard for the same, and old, indsecure, over said band saw, as and for a guard for the same, an old, insecure, and improperly constructed box," and negligently and "wrongfully failed to maintain said box or keep the same in repair, and carelessly, negligently and wrongfully failed and neglected to properly inspect the same, or cause the same to be inspected, and at all times wrongfully allowed and permitted the same to become and remain weak, insecure, and defective, so that parts of said box, both the top and sides, while said saw was being used and slabs passing against, over, and through the same, were, by reason of said defects, and the action of said machinery and slabs, thrown from their places and hurled at great distances and with great force to different places in said room, where defendant's employees were engaged in the performance of their various duties, all of which facts were known to the defendant, but of which this plaintiff had no knowledge or notice."
It was further alleged that "by reason of the negligence carelessness, and wrongful conduct of the defendant as aforesaid, a large portion of the side of said box over said band saw, extending the whole length thereof, was, by reason of its defective condition and the negligent, careless and wrongful manner in...
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