Wiggin v. Northwest Paper Co.

Start, C. J.

Appeal, in a personal injury action, from an order of the district court of the county of Carlton denying the defendant’s motion for judgment notwithstanding the verdict or for a new trial. The plaintiff bad a verdict for $1,000 and a new trial was denied on condition that be consented to a reduction thereof to $750.

The plaintiff, on February 16, 1910, was employed in the defendant’s paper mill at Cloquet as a millwright’s helper. He was directed by the millwright, wbo was bis foreman and a vice-principal, to assist bim in the alteration of a coal conveyor, wbicb was used to convey coal to the bothers in the bother room. The place assigned to bim in wbicb to work was a reasonably safe one, if the conveyor was not put. in motion, but obviously dangerous if it was started without first warning bim. Whthe be was working on the conveyor, it was started without warning to bim and be was caught between one of the cables of the conveyor and the wheel on wbicb it was running, whereby be-was injured. The plaintiff, when so injured, was working at a point, some twelve feet or more above the floor of the bother room, where the-coal conveyor was operated by either the fireman or bis assistant, and started, by one of them, whenever more coal was required, by pulling down on a cable wbicb set the machinery in motion. The conveyor was stopped by pulling on a cable hanging within two feet of the cable which started the conveyor. The cables were similar in appearance and neither had any distinguishing mark or label.

The evidence as to the foregoing facts was substantially uncontradicted. There was also evidence, conflicting in some material particulars, tending to show that it was the duty of the fireman and his assistant to start and stop the conveyor, and, when about to start it, to see that no one would get hurt thereby; that they had full charge of the machinery by which it was started and stopped; that the millwright, when the work on the conveyor was commenced, called down to the fireman not to start it until the work was finished, but no response was made from below and neither of the firemen heard the order; that when the fireman got ready to start the conveyor he called “watch out,” and without waiting for any answer, or giving any instructions to his assistant who remained in the bother room, went out of the bother room, threw in the friction clutch in the machine shop preparatory to starting the conveyor; the assistant fireman then started, as was his custom in such cases, to throw on the friction in the bother room, which would start the machinery, then some one called out not to start it, but, by mistake or otherwise, he pulled the wrong cable and the conveyor was set in motion, which resulted in the plaintiff’s injury.

The trial court instructed the jury that:

“If reasonable and ordinary care for the safety of the plaintiff, whthe he was doing the work he was put to do, required of the defendant that it see to it that the cable should not be started, its negligent failure to do so makes it liable, in the absence of contributory negligence or the assumption of risk by the plaintiff.

“If the plaintiff was set to work at a place which would be dangerous to him if the cable started, and ordinary care for his safety made it the duty of the defendant to see that the cable remained stationary whthe he was at work there, and it negligently fathed to see to it, then it is liable .to the plaintiff, unless he was, himself, negligent or assumed the risk which resulted in his injury.”

No objection was made by the defendant to these instructions at the trial, but were first excepted to on the motion for judgment or a new trial.

The defendant’s first contention to be considered is to the effect that the plaintiff’s injury was caused by a mistake or negligence of bis fellow servant, the assistant fireman, for the reason that the defendant “bad provided a reasonably safe place, and the keeping of this conveyor stationary was merely incidental to the work of altering it, and the case at bar does not come witbin the customary warning rule, wbicb is peculiar to this state and one or two' others.”

It is obvious that the place in wbicb the plaintiff was required to work was one of peril, unless the conveyor remained stationary, and that the keeping of it stationary was not merely incidental to the work to be done upon it, but that it was the absolute duty of the defendant to exercise ordinary care, that is, due care, to protect the plaintiff, whthe so at work, from injury by the starting of the conveyor without warning. Aho v. Adriatic Mining Co. 117 Minn. 504, 136 N. W. 310. Whether the defendant exercised such care for the safety of the plaintiff, was made by the evidence a question of fact, for it does not conclusively appear from the evidence that the plaintiff was injured solely by the negligence of a fellow servant. The defendant’s motion for judgment absolute in its favor was rightly denied.

In support of its motion for a new trial the defendant urges that the giving of the instructions we have quoted was reversible error for the reason that they “gave the jury the right to say that reasonable care required that defendant should guarantee that the conveyor should not be started by any cause or agency.” If such be the fair import of the instructions, they constitute reversible error. We are, however, of the opinion that the construction of them claimed by the defendant is not justified by the language of the trial court. The jury were told in effect tbat, if reasonable care for the safety of the plaintiff required the defendant to see to it, that is, to take care, that the conveyor was not started whthe be was at work on it, and if the defendant negligently fathed so to do, then it was liable to the plaintiff, unless be was himself negligent or assumed the risk. So construed, the instructions were correct, and if there was any reason to apprehend that the jury might not so understand them, the attention of the trial court should, have been called to them at the time they were given, instead of excepting to them for the first time on the motion for a new trial.

The defendant’s last contention is that the damages are excessive. The evidence tended to show that the plaintiff’s'injuries were severe, hut not permanent, and that he suffered great pain, and special damages to the amount of some two hundred dollars. We are of the opinion that the award of damages as reduced is only fairly compensatory.

Order affirmed.