Schultz v. City of St. Paul

Dibell, C. This is an action for personal injuries. At the close of the testimony it was dismissed on the motion of the defendant. The plaintiff appeals from the order denying his motion for a new trial. 1. The plaintiff was in the- employ of the city helping raise the Westminster street bridge. This bridge is two blocks long, crosses some railway tracks, and is of steel construction. In doing the work hydraulic jacks were- used. They were placed on the piers below. On them were placed heavy timbers which reached to the framework above. By raising the timbers the bridge and steel posts were raised and steel plates were then placed underneath the posts-which rested on the piers and which supported the steel framework above. The plaintiff claims that the defendant was negligent in making use of the hydraulic jacks for this work. The specific claim is that the hydraulic jacks furnished so small a facing for the timbers which rested upon them that they were liable to buckle and cause a fall. The evidence is such as to justify a finding that the timbers fell because [259] of such buckling and caused tbe plaintiff’s injury. Tbo plaintiff presented evidence which had a tendency to show that hydraulic jacks such as those used are not proper instrumentalities for use in such work. It was the duty of the city, just as of anyone engaged in like work, to exercise ordinary care to furnish reasonably safe and proper instrumentalities. The jury might have found that it was negligent in this respect. Costello v. Frankman, 97 Minn. 522, 107 N. W. 739; Swanson v. Oakes, 93 Minn. 404, 101 N. W. 949; Attix v. Minnesota Sandstone Co. 85 Minn. 142, 88 N. W. 436; King v. Chicago, Minneapolis & St. Paul Ry. Co. 104 Minn. 397, 116 N. W. 918. 2. If the city was negligent in making use of hydraulic jacks and its negligence combined with that of a fellow servant of the plaintiff in adjusting them and the negligence of the two proximately contributed to the injury the plaintiff could recover notwithstandiug his fellow-servant’s negligence. Swanson v. Oakes, 93 Minn. 404, 101 N. W. 949, and cases cited. Considering, for the purpose of this appeal, that the adjustment of the jacks was a fellow-servant act, the case was still for the jury. 3. It is claimed that the plaintiff assumed the risk of the use of the hydraulic jacks as a matter of law. He was a common laborer. At the most it was a question for the jury. The defendant justifies their use as reasonably safe. 4. It is provided by E. L. 1905, § 768, in substance, that any person who claims damages from a city for loss or injury from any defect in a street, road, bridge or other public place, or by the negligence of its officers, agents or servants, shall present to its council, or other governing body, within 30 days, notice of his claim; and that no action therefor shall be maintained unless such notice has been given, or more than one year after the occurrence of the loss or injury. The provision of the St. Paul charter, section 690, is substantially identical and it is immaterial which controls. The plaintiff was injured on May 25, 1911, and the action was commenced on January 15,-1913. The defendant contends that the plaintiff’s cause of action is barred. In Gaughan v. City of St. Paul, 119 Minn. 63, 137 N. W. 199, it was held that the notice was not required when the injury came be [260] cause of the failure of the city in one of its duties to the plaintiff imposed upon it as master. Whether the one year’s limitation runs in a like situation has not been decided. The reasoning which induced the holding in the Gaughan case is controlling on the limitation feature of the statute, and we now hold that under section 768, and the provision of the city charter, section 690, the one year’s limitation does not apply where the injury results from the negligence of the city in the performance of one of its duties as employer. It may be noted that by Laws 1913, p. 552, c. 391, § 4 (G. S. 1913, §§ 1786-1789), effective July 1, 1913, section 768 is repealed, and substantially .re-enacted, but with the provision that the notice and limitation features shall apply to master and servant relations, and that the act shall apply to cities existing under charters framed pursuant to section 36 of article 4 of the Constitution. Order reyersed.