Hamlin v. Lanquist & Illsley Co.

Per Curiam. The intestate of. plaintiff and respondent was employed by defendant and appellant in the construction of the new courthouse building in Duluth. Various crews of men were employed. The defendant insists that every member of these crews had a foreman or boss in ■charge of them. Deceased, according to defendant, was foreman of the crew here involved. The jury found otherwise. Pie must be here regarded as merely a member of the structural iron crew, in which work he had been engaged for years previously. Defendant used certain large steel derricks. Each derrick had two stiff-legs, composed of timbers designed to hold the mast rigid and in an upright position. The mast and boom were equipped with the usual lines, blocks, pulleys, etc. The heel of each of these masts, when erected, rested in a steel socket or hole in a casting which tended to keep the mast from slipping sideways. Steel goosenecks were arranged at the top of each mast, through which wire cables were passed. These cables were brought down and wrapped around the steel framework of the building upon which the derrick stood. By the use of turn buckles these cables were set and fastened into position by means of these stiff-legs and cables. Defendant also provided certain dogs or clamps, which could be fastened over the heels or bottom of the masts, which had a tendency and whose function was to assist in holding the mast in position and to prevent [494] tlie bottom of tbe mast from kicking ont of tbe socket or hole.. These clamps were sometimes used and sometimes not at all. The derricks were moved from place to place as the work progressed. They remained in one place until the work of raising steel for two floors-was done. They were then moved up two floors, and so on. Immediately prior to this accident the derrick in question, was set up by the crew of iron workers of which deceased was a member, and it must be assumed for present purposes not its foreman. Anderson, the head foreman of the iron workers’ crew, was present at various times while this derrick was being put up. The derrick was set up. The dogs or clamps provided by defendant were not used. While defendant’s servants were lifting a portion of the lower derrick and placing it in position, the mast of the lifting derrick slipped out of position — i. e., out of its socket — and fell down, causing the deceased to fall. From the effects, he subsequently died. At this time the building was partially constructed. The derrick was oh the fifth floor, some sixty-five feet above the ground. There was no floor between what was known as the fifth and third floors. There was conflict of testimony as to whether there was any lashing of the mast on this derrick. The jury returned a verdict for plaintiff. This appeal was taken from the order of the trial court denying defendant’s usual motion in the alternative. 1. The first question presented by the record is whether the trial court should have directed a verdict for defendant. It is clear that on this point the trial court ruled correctly. The court charged in part that if the witness whose testimony appears in the record called the attention of Anderson, the head foreman, to a movement in the mast which indicated that something was-wrong in the arrangement- and operation of the derrick, and Andei’son went above to see about it, and the condition and situation were such that in the exercise of ordinary care Anderson would or should have seen a defect, and in the exercise of ordinary care would or should have remedied the same, “then you can find that the defendant was guilty, although at the time the derrick was put up it was in a proper and safe condition for operation.” The record justified the [495] instruction. It follows that the trial court properly refused to direct judgment for defendant notwithstanding the verdict. 2. The question then arises whether a new trial should have been granted because the court charged the jury: “It was the duty of the defendant to exercise ordinary care in seeing to it that this derrick was properly equipped and like care in keeping it in a reasonably ■safe condition,” and because the court refused to charge that, “when a master has furnished proper and reasonably safe appliances for the work to be done, his personal duty does not extend so far as to require him to attend to the proper regulation and adjustment of the parts of the implement or machine, and if an accident occurs because of a want of care on the part of the men erecting or adjusting said machinery, the master is not liable.” There were other requested and refused instructions to the effect that the work of erecting the derrick under circumstances here presented “was part of the details of the work of construction,” and that under .the circumstances the negligence of the servants erecting the derrick was the negligence of a fellow servant, for whose negligence defendant who had provided the clamps Avas not responsible. On this point the members of the court do not agree. A majority of the court are of the opinion that under the circumstances of this case, the height of the building and the size and weight of the derrick, it (the derrick) Avas an appliance Avhich the master undertook and was required to furnish completely set up and ready for use in a safe condition, and in this respect differed from a scaffold and most other temporary appliances, as to the construction and sufficiency of which the servants are required to exercise a discretion and assume the risk of each other’s negligence. Blomquist v. Chicago, M. & St. P. Ry. Co., 60 Minn. 426, 62 N. W. 818; Carlson v. Northwestern Tel. Exch. Co., 63 Minn. 428, 65 N. W. 914. Therefore the trial court correctly instructed the jury it was defendant’s duty to exercise ordinary care in seeing to it that this derrick was properly equipped and like care in keeping it in the same condition.