Drymala v. Thompson

• Decision Date: 02 May 1879
• Citation: 1 N.W. 255,26 Minn. 40
• Parties: Anton Drymala v. Horace Thompson and others
• Court: Minnesota Supreme Court

1 N.W. 255

26 Minn. 40

Anton Drymala v. Horace Thompson and others

Supreme Court of Minnesota

May 2, 1879

Appeal by defendants from a judgment of the district court for Ramsey county, where the action was tried before Brill, J and a jury.

Judgment affirmed.

Geo. L. & Chas. E. Otis, for appellants.

Pierce Stephenson & Mainzer, for respondent.

OPINION

Berry J.

The defendants, who were operating the railroad of the First Division of the St. Paul & Pacific Railroad Company, had the plaintiff in their employ as a laborer on a wood train. The train was in constant use, but had no regular running time. On February 24, 1877, as it was running towards Willmar, the cars which formed part of it, and which were loaded with wood, were ditched, in consequence of a rail having been taken up for repair of the track, and the plaintiff, who was attending the brakes, leaped to the ground for the purpose of saving himself, and broke his leg. He brings this action for damages. No negligence is imputed to the plaintiff, or to any other person belonging to the train. It appears that the railroad is divided into short sections, each of which is under the charge of a section foreman, whose duty it is to keep his section in repair, and for that purpose to take up rails if necessary. It further appears that the rail, the absence of which occasioned the ditching of the cars, was taken up for the purpose of repairing the track, by the foreman of the section in which the accident occurred, and that he negligently failed to put out any proper signals as a warning to approaching trains. It is found by the jury, and in effect conceded by the defendants, that the foreman was thus negligent, and that such his negligence was the cause of the ditching of the train, and of the consequent injury to plaintiff. The defence is, that the section foreman was the plaintiff's fellow-servant, and that, as he was a competent and suitable foreman, the defendants, his employers, are not liable to the plaintiff for the consequences of his negligence.

In our opinion, this defence is not well taken, the rule recognized in Foster v. Minn. Central Ry. Co., 14 Minn. 360, exempting a master from liability to one servant for the negligence of a fellow-servant, having no application to the facts of this case. It is the duty of a master to use due care in supplying and maintaining suitable instrumentalities for the performance of the work required of his servants. This duty is imposed upon him as master. It is a duty which the law implies from the relation of master and servant, and which it regards as entering into the contract by which the relation is formed. It is therefore an absolute and personal duty -- that is to say, it is one, from...