Sims v. American Steel Barge Co
| Decision Date | 02 January 1894 |
| Docket Number | 8363 |
| Citation | 57 N.W. 322,56 Minn. 68 |
| Parties | James Sims v. American Steel Barge Co |
| Court | Minnesota Supreme Court |
Argued December 13, 1893.
Appeal by defendant, the American Steel Barge Company, from a judgment of the District Court of Ramsey County, Chas. D Kerr, J., entered July 7, 1893, against it for $ 3,667.85.
The plaintiff, James Sims, on June 1, 1892, was employed by defendant in the work of fitting inside steel plates to the frame of a steel barge it was then building at West Superior Wis. He was taking upon a mould or wooden strip the exact position of the rivet holes in the steel frame of the vessel to enable him to lay off or indicate corresponding holes in the steel plate that was to be fitted on. He was called a ship-plater, and his work, laying off steel plates. He learned the trade on the Clyde in Scotland and had been eight years in this country at work in different ship yards. On that day the stage builders put up inside staging on the port side of the vessel for plaintiff and his helper to work on. One of the planks sixteen feet long and two inches thick was knotty and very cross-grained near the middle. It rested on wooden horses at each end. It suddenly broke while plaintiff was on it and he fell sixteen feet into the hold and his left foot was seriously injured. The action was to recover damages for the injury. Plaintiff claimed that the negligence of the builders of the staging in using an unfit plank was defendant's negligence, and rendered it liable to him. The answer was a general denial. Defendant moved to change the place of trial from Ramsey to St. Louis County for the convenience of witnesses, but its motion was denied and the issues were tried March 28, 1893, before a jury. Defendant claimed that the plaintiff and the stage builders were fellow servants and also claimed after the case was submitted that there was no evidence that any of its servants built the staging. Plaintiff had a verdict for $ 3,500. Defendant moved for a new trial but was denied, costs were taxed, and judgment was entered on the verdict. Defendant appeals.
Judgment affirmed.
Kitchel Cohen & Shaw, for appellant.
In this case the plaintiff lived in West Superior, his injuries occurred there in defendant's shipyard. The witnesses to the transaction on both sides lived at West Superior. The nearest County Seat in this State is Duluth. It is distant from the point of the accident only five miles, and the next term of Court there, after the application for the change of venue occurred within six weeks. As against this showing the plaintiff's only answer was, that the defendant could as little compel the attendance of Wisconsin Witnesses in Duluth as it could compel their attendance in St. Paul. We submit that this answer was incomplete.
The modern rule concerning change of venue does not depend entirely upon the mere convenience of witnesses, but also, as stated in the law itself, upon the promotion of justice by the change. The trial should be as near as possible to the place where the cause of action arose.
Guinane, the scaffold builder, testifies that he did not select or place this plank on the horses. The plaintiff and his assistant were away while the planks were being put upon the horses. They both testify that they did not select or place it there. It is clear from this testimony that during the time when Sims and Youngquist were in the yard, some one placed in position the platform upon which Sims afterward worked. Who so placed the platform does not appear. The only persons around were the bolters and Sims and Youngquist, his helper. The scaffold builder was not there, nor, so far as appears in the testimony, was any one of his crew. Here was a gap in the plaintiff's case.
It could not be an act of negligence on the part of defendant, no matter by whom the plank was placed in position, if, in fact, it was not placed in position by one of the crew of scaffolders. If the plank were placed where it was by a stranger or by another workman engaged in the work of erecting the vessel, such act would not be the defendant's act. Joy v. Winnisimmet Co., 114 Mass. 63; Flynn v. Beebe, 98 Mass. 575.
The scaffolders were plaintiff's fellow servants. Lindvall v. Woods, 41 Minn. 212; Fraser v. Red River Lumber Co., 45 Minn. 235; Ling v. St. Paul, M. & M. Ry. Co., 50 Minn. 160.
C. D. & Thos. D. O'Brien, for respondent.
The determination of the Court upon the motion to change the place of trial was purely discretionary, and the defendant fails to point out any abuse of the discretion exercised by the Court below upon that subject.
The staging was erected within and between the decks of a vessel which was in course of construction by the defendant through its employes. The defendant had provided a crew of men to perform that work and they performed none other. When the plaintiff returned from the yard he found the staging constructed. Neither he nor his helper constructed it or any part of it. In the absence of knowledge on his part the presumption is conclusive that defendant erected it, and erected it through the employes detailed for that purpose.
The materials for this staging were furnished by the master, and the construction of the same was delegated by the master to the witness, Guinane, and a crew of from two to four men who assisted him. It was the duty of Guinane and this crew to perform this specific work, and they did nothing else with respect to the general employment. The men composing this crew were not fellow servants of plaintiff in the sense that defendant is not responsible for their negligence. Le Clair v. First Div. St. Paul & P. R. Co., 20 Minn. 9; Steen v. St. Paul & D. R. Co., 37 Minn. 310; Sather v. Ness, 44 Minn. 443; Kelly v. Erie, T. & T. Co., 34 Minn. 321; Anderson v. Minnesota & N.W. R. Co., 39 Minn. 523; Anderson v. Northern Mill Co., 42 Minn. 424; Cook v. St. Paul, M. & M. Ry. Co., 34 Minn. 45; Ransier v. Minneapolis & St. L. Ry. Co., 32 Minn. 331; Franklyn v. Winona & St. P. R. Co., 37 Minn. 409.
Plaintiff was a ship plater in defendant's employ, at its yards in West Superior, Wis. He was injured while "laying off" steel plates upon the deck of a steam barge which defendant corporation was constructing in said yards. The deck beams of steel had been put in, but the spaces between them were open. In order to do his work, the plaintiff had to go upon a staging made of two or more planks, sixteen or eighteen feet long, laid upon wooden horses about two and a half feet high. These horses rested on planks laid down upon the deck beams. A plank used for staging broke, and plaintiff was precipitated to the hold of the vessel, some eighteen feet, receiving the injuries complained of, and which he attributes to d...
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