Sather v. Ness

• Decision Date: 18 January 1890
• Citation: 42 Minn. 379,44 N.W. 128
• Parties: SATHER v NESS.
• Court: Minnesota Supreme Court

42 Minn. 379

44 N.W. 128

SATHERvNESS.

Supreme Court of Minnesota.

Jan. 18, 1890.

(Syllabus by the Court.)

Evidence considered, and held to make a case that ought to have been submitted to the jury.

Appeal from district court, Ramsey county; KELLY, Judge.

Lawler & Durment, for appellant.

John B. & W. H. Sanborn, for respondent.

GILFILLAN, C.J.

This is an action to recover for causing the death of Ole Andreas Sather, of whose estate plaintiff is executrix, through the negligence, as alleged, of the defendant. The defendant was working a stone quarry, and the deceased was one of his employes in working it. The employes in their work used a derrick, furnished, of course, by the defendant. While the deceased and some others were using the derrick in the work it broke down, and what is called the “mast” fell upon and killed him. The action is based on the allegation that the derrick was defective and insufficient in strength to do the work that the employes were called upon to do with it, and that it was so defective and insufficient through the negligence of the defendant. At the close of the plaintiff's case the court below instructed the jury to find a verdict for defendant, which was done. Plaintiff moved for a new trial, and from an order denying it she appeals.

The defect in the derrick which the evidence tended to show was in one of the guy-ropes which supported the mast, and held it, or ought to have held it, in an upright position. There were four of these, -one on each the north, south, east, and west sides of the mast. The two on the north and south sides were of ungalvanized iron; the other two of galvanized iron. While the men were trying, by means of the derrick, to raise a stone, the north and east guys broke. The point at which they broke was where they were fastened to the mast by being turned or looped over rings in an iron plate at the top of the mast. There was evidence tending to prove that the ungalvanized guy broke first; and that at the point where it broke-where it came in contact with the iron ring-it was considerably rusted, and was worn partly through,-from one-fifth to one-fourth through. It is apparent that this guy was not sufficiently strong to bear the strain to which it was being subjected when it broke. And here appears to have been the principal contention in the case, -the plaintiff contending that the men were putting the derrick to a use for which it was intended, and to which it was proper for them to...