Sather v. Ness

This case was here at the October term, 1889, and was sent back for a new trial, the decision being reported in 42 Minn. 319, (44 N. W. Rep. 128.) The case made upon the new trial is not essentially different from that on the former trial. The new trial was ordered because, on the former trial, there was evidence tending to prove that in the business of quarrying stone with a derrick, it is customary, when a stone is apparently loosened from its bed, to apply the derrick power to ascertain if it is in fact loose, and we held that, if such were a customary use of a derrick, the master should furnish one strong enough to answer that use. Upon the last trial, the evidence that such was a proper use of a derrick was •■as full as on the former trial. It is true the defendant testified.that he had instructed the men working in the quarry not to hook on to anything too big, or anything fast. But, taken altogether, his evidence was not so precise and definite that the jury were obliged to understand it as prohibiting the use of the derrick as deceased and those working with him were using it, to wit, in applying its power to a stone which, though it'was in fact fast, they believed to be loose. The charge of the court was full, and accurately stated the rules of law applicable to the case, and covered the points presented by the defendant’s requests, and it was not necessary for it to repeat its statements of the law by giving those requests. We do not see any •error in the rulings of the court upon questions of evidence, nor in the instruction it gave at the request of the plaintiff.

Order affirmed.