Stahl v. City of Duluth

• Decision Date: 26 January 1898
• Citation: 71 Minn. 341,74 N.W. 143
• Parties: STAHL v CITY OF DULUTH.
• Court: Minnesota Supreme Court

71 Minn. 341

74 N.W. 143

STAHLvCITY OF DULUTH.

Supreme Court of Minnesota.

Jan. 26, 1898.

(Syllabus by the Court.)

1. Evidence considered, and held, that the defendant's foreman was a vice principal as to his acts of negligence relied on for a recovery in this case, and, further, that the verdict is sustained by the evidence.

2. Held, that the trial court did not err in overruling defendant's objections to certain hypothetical questions, nor in refusing to strike out the answer thereto.

3. Held, that it was not reversible error for the trial court to permit a stenographer to testify from her shorthand notes as to the testimony of witnesses on a former proceeding, without formal and direct proof being made that she was unable, without the aid of her notes, to recall their testimony.

Appeal from district court, St. Louis county; J. D. Ensign, Judge.

Action by Charles J. Stahl, as administrator of the estate of Erick Engstrom, deceased, against the city of Duluth. Verdict for plaintiff. Defendant appeals from an order denying its alternative motion for judgment or a new trial. Affirmed.

Canty, J., dissenting.

Draper, Davis & Hollister, for appellant.

John Jenswold, Jr., for respondent.

START, C. J.

The plaintiff's intestate, Erick Engstrom, was killed by an explosion of dynamite while at work for the defendant in the excavation of a ditch for its water mains. This action was brought to recover the damages sustained by his widow and child by reason of his death, which was caused by the alleged negligence of the defendant. Verdict for the plaintiff for $2,500, and the defendant appealed from an order denying its alternative motion for judgment or a new trial.

1. The work in question was, at the time of the accident, in the charge of Emil Engle, whose negligence, as plaintiff claims, caused Engstrom's death. The defendant claims that Engle was not a vice principal, but a fellow servant, as to his acts of alleged negligence relied on for a recovery in this case. This claim is stated by its counsel thus: “Engle was a fellow servant with the deceased in regard to the very thing which is alleged to be dangerous; that is, the removal of the rock at the southeast corner of the trench.” The argument on this point seems to rest upon a misconception as to the particular act of negligence on the part of Engle complained of. This is not a case where the right to recover is based upon the fact that the place furnished by the defendant in which its employés were to work became unsafe during the progress of the work by the negligence of the employés, including the foreman. See Bergquist v. City of Minneapolis, 42 Minn. 471, 44 N. W. 530. On the contrary, the alleged negligence which is the gist of this action is that the deceased, an ordinary laborer, was by Engle, the foreman, negligently ordered from one part of the work to another, and there directed to pick and remove the loose rock at and around a hole in which there was an unexploded charge of dynamite, without first exercising ordinary care, and making a reasonable examination to ascertain the existence of such unexploded charge, and without warning him of the latent danger. The admitted facts, together with the undisputed evidence, show that, if Engle was thus negligent, it was the negligence of a vice principal. They show: That the defendant was engaged at the time in the work of digging trenches for its waterworks, which work involved the excavation of rock, by drilling, blasting, and removing the same. That the explosive used was dynamite, a dangerous agency, requiring care in its use. That the work was laid out by the defendant's board of public works, individual members of which visited the work twice a week, but the execution of the work was committed to Engle, the foreman, who had the entire charge of the work and the men, who were divided into drilling gangs, blasters, derrick men, and pickers. Engstrom, the deceased, belonged to the last-named class, and was employed, as a common laborer, to pick and shovel such earth and rock as could be handled in that way. That Engle had authority to give all orders to all of the men as to how and where they should work, and to discharge them. His authority in these respects was unrestricted. That the character of the work was such that it was the duty of the defendant to exercise ordinary care, so as not to expose the workmen to unnecessary risks, unknown to them, but which it might discover and remedy by reasonable care on its part. This was its personal duty, which it delegated to Engle, and if he negligently discharged the duty, it was its own negligence. Carlson v. Exchange Co., 63 Minn. 428, 65 N. W. 914.

2. The defendant further claims that the verdict is not sustained by the evidence, in that there was no evidence sufficient to warrant a finding that Engle was negligent, as claimed or otherwise. No claim is made of any want of care on the part of Engstrom in the premises. There was evidence tending to show that, about a week prior to the day of the accident, some six or eight holes had been drilled in the rock in the east end of the trench, which the blasters loaded with dynamite, connected them together with wires, and fired them with a battery; that, where several blasts are thus set off at once, it sometimes happens that all of them are not exploded, but, as there is only one sound of an explosion, it is not possible, by the report, to determine whether or not all the charges are exploded; that a person familiar with the use and effects of dynamite in blasting can ordinarily ascertain whether any of the blasts in such a case remain unexploded, by an examination of the hole and of the surface indications of the rock at and around it. It was claimed on the trial by the plaintiff that the accident happened in the morning, about half an hour after the work for the day had been commenced; that the deceased was working in the middle of the trench, and was directed by Engle to go to the east end of it, there to loosen with his pick some rock, so that it could be removed; that Engle went with him, and indicated the place where he should work, near the southeast corner of the trench, where a hole had been drilled in the rock, and loaded with dynamite, but which failed to explode when the blasts we have referred to were set off; that the deceased complied with the foreman's direction, and, when he struck the second blow with his pick, the charge of dynamite exploded, killing him; that the condition of the rock at this point, at the time the deceased commenced to work there, was such that Engle, by the exercise of ordinary care, might have learned that there was an unexploded charge of dynamite there; and that he ought to have known it, and warned the deceased of the danger thereof. The defendant controverted these claims, and maintained that the deceased did not set off a charge of dynamite in a hole which had been loaded and failed to explode, but that he was killed by striking a piece of dynamite which had been left in the loose dirt or clay near the rock, by accident or design, by some person for whose act the defendant was not responsible, and, further, that the condition of the rock where deceased was directed to work was not such as to indicate any unexploded charge of dynamite there. The trial court submitted each of these issues to the jury. As to the first its instruction was: “If the jury find that the explosion was caused by Engstrom striking some explosive substance in the clay or dirt upon or near the rock, instead of, as plaintiff alleges, in a hole which had been drilled and charged, the verdict of the jury should be for the defendant.” As to the second the jury were instructed: “Unless the jury find that Engle, in the exercise of ordinary care, skill, and caution, having reference to the dangers to be apprehended, had reason to suspect that there might be danger in working where deceased was directed to work, plaintiff cannot recover.” These instructions are clear and concise, and the jury must have understood exactly what the issues were, and they found for the plaintiff upon each of them, and the trial court approved the finding. The defendant, however, claims that there is no evidence to support the verdict as to either issue. The evidence is so voluminous and conflicting that it is impractical to here quote or analyze it, and we content ourselves with stating in a general way the conclusion reached from a consideration of the record.

There is ample evidence to sustain the finding of the jury to the effect that the explosion which killed Engstrom was not caused by his striking a stray piece of dynamite which had been left, by...