Schlitz v. Pabst Brewing Co.

• Decision Date: 24 May 1894
• Docket Number: No. 8890.,8890.
• Citation: 57 Minn. 303
• Parties: ADOLPH H. SCHLITZ <I>vs.</I> PABST BREWING CO. <I>et al.</I>
• Court: Minnesota Supreme Court

57 Minn. 303

ADOLPH H. SCHLITZvs.

PABST BREWING CO. et al.

No. 8890.

Supreme Court of Minnesota.

Submitted on briefs May 10, 1894.

Affirmed May 24, 1894.

Appeal by defendants, Pabst Brewing Co. and Jos. Schlitz Brewing Co., two corporations, from a judgment of the District Court of St. Louis County, J. D. Ensign, J., entered against them March 23, 1894, for $2,081.26.

The defendants manufacture malt liquors at Milwaukee, Wis. and have a joint agency for its sale at Duluth. They employed the plaintiff, Adolph H. Schlitz to drive a delivery wagon there and deliver beer at saloons. On July 4, 1891, he was told by Pierce the general agent in charge at the Duluth agency to use a certain wagon. He objected to using it saying, that the body of the wagon was so low that in turning the front wheels could not go under it and that in attempting to turn a short corner it was liable to upset. Pierce said to him in reply that they were short of wagons for that day and that he must use it for the rush of July 4th and that on the following day plaintiff should have another and safe wagon. Schlitz consented to and did use it until six o'clock in the afternoon, when in climbing up onto it the team made a short turn and upset the wagon and seriously injured him. He brought this action against the two corporations to recover damages for his injuries. He proved that the wagon when new allowed the front wheels to go under the body in turning, but that by long use and overloading the springs had flattened down and allowed the body of the wagon to settle, so that the wheels would no longer go under it. He had a verdict for $1,850. Judgment was entered thereon and defendants appeal.

Cash Williams & Chester, for appellants.

John Jenswold, Jr., for respondent.

GILFILLAN, C. J.

Plaintiff, a driver of defendants employed to drive a delivery wagon, was, while so employed, injured, as he claims, through a dangerous defect in the wagon he was using. The evidence was such as to justify a finding that the wagon was defective to such a degree as to be dangerous to the driver, and that the injury to plaintiff was in consequence of its dangerous condition.

Both parties, employer and employé, knew equally well the dangerous condition of the wagon, so that, under ordinary circumstances, it would be a case of the assumption of risk by the employé continuing to use it.

But it is a well-settled rule that where the servant, though he knows the dangerous condition of the...