Thomas v. Burt

• Decision Date: 11 November 1910
• Parties: THOMAS v. BURT et al.
• Court: Minnesota Supreme Court

112 Minn. 360

128 N.W. 297

THOMAS

v.BURT et al.

Supreme Court of Minnesota.

Nov. 11, 1910.

Appeal from District Court, Hennepin County; David F. Simpson, Judge.

Action by H. H. Thomas, administrator, against Horace G. Burt and others, receivers of the Chicago & Great Western Railway Company. Verdict for plaintiff. Motion for judgment notwithstanding the verdict or for new trial denied, and defendants appeal. Affirmed.

Syllabus by the Court

Action to recover damages for the death of the plaintiff's intestate, an employé of the defendant, by reason of its alleged negligence. The evidence tended to show that the deceased was sent by the defendant to repair an engine and make a pump work in its detached pumphouse; that he was killed while so engaged by his clothing being caught in an unguarded shaft and a protruding key thereon, which it was practicable to have guarded. The jury were instructed that the pumphouse was in the same class as a factory, mill, or workshop, and, if the shaft with the key was so situated as to be dangerous to workmen, it would be within the provisions of the statute requiring it to be guarded. Held, that the instruction was correct; that whether the defendant was negligent, or the deceased was guilty of contributory negligence, or assumed the risks, were made by the evidence questions of fact; that no reversible errors were made by the trial court in its rulings as to the admissions of evidence, or in its instructions to the jury; and that the damages, as reduced by the trial court from $5,000 to $3,250, are not excessive. Briggs, Thygeson, Loomis & Everall, for appellants.

James A. Peterson (Grotophorst, Evans & Thomas, of counsel), for respondent.

START, C. J.

The plaintiff's intestate, Howard C. Powers, was killed while in the employ of the defendant railroad company. This action was brought in the district court of the county of Hennepin to recover the damages sustained, by his next of kin, by his death due to the alleged negligence of the defendant. The trial resulted in a verdict for the plaintiff in the sum of $5,000. The defendant made a motion for judgment in its favor notwithstanding the verdict, or for a new trial. The trial court made its order denying the motion for judgment and granting the motion for a new trial, unless the plaintiff consent to a reduction of the damages awarded to the sum of $3,250. The defendant appealed from the order, and here assigns 19 alleged errors, which raise the questions whether the trial court erred in denying the defendant's motion for a directed verdict, or in its rulings on the admission of evidence, or in its instructions to the jury, or in refusing to grant a new trial on account of excessive damages.

We have examined the record with reference to these several questions, and find that the first is the only one meriting serious consideration. The defendant's first contention is that there was no evidence justifying a finding that the death of the deceased was caused by any negligence on its part. The specific negligence charged in the complaint is that the defendant failed to exercise due care in furnishing the deceased a safe place in which to work, in that it left an unguarded shaft and protruding key therein so located that the deceased, while working in the line of his duty, was caught in the shaft and killed. The evidence was sufficient to sustain a finding of the facts following:

The deceased was an unmarried man, 24 years of age, of good habits, and industrious. He left him surviving a father and mother, who were in a measure dependent upon him for their support, to which he contributed before and after he was 21 years old. He was employed about a month before his death by the defendant as a repairman, with the promise of the position of gas engine repairman when he had learned the business. On March 4, 1909, he was sent to Coates, Minn., to repair a gasoline engine and to make a pump work, which were in the defendant's pumphouse, a detached building 15 1/2 by 15 1/2 feet. The pumping machinery consisted of an unright gasoline engine gearded to connect with a pump, and set upon a block of iron about 18 inches in height. Upon upright extensions of the iron base were placed the journals and shaft, which were about 3 feet above the floor. Just within the journal on the north side there was a spool 1 foot in length, and 1 foot in...