Hughes v. Winona & St. Peter Railroad Company

• Decision Date: 08 September 1880
• Citation: 6 N.W. 553,27 Minn. 137
• Parties: William J. Hughes v. Winona & St. Peter Railroad Company
• Court: Minnesota Supreme Court

6 N.W. 553

27 Minn. 137

William J. Hughes v. Winona & St. Peter Railroad Company

Supreme Court of Minnesota

September 8, 1880

Appeal by plaintiff from a judgment of the district court for Winona county, where the action was tried before Mitchell, J., and a jury.

Order affirmed.

Lloyd Barber, for appellant, cited Drymala v. Thompson, 26 Minn. 40; Wedgwood v. Chicago & N.W. Ry. Co., 44 Wis. 44; Bessex v. Chicago & N.W. Ry. Co., 45 Wis 477; Ryan v. Fowler, 24 N.Y. 410; Le Clair v First Div., etc., R. Co., 20 Minn. 9; Laning v. New York Central R. Co., 49 N.Y. 521; Snow v. Housatonic R. Co., 8 Allen, 441; Huddleston v. Lowell Machine Shop, 106 Mass. 282; Ford v. Fitchburg R. Co., 110 Mass. 240; Kroy v. Railroad Co., 32 Iowa 357; Muldowney v. Illinois Central Ry. Co., 36 Iowa 462; Way v. Illinois Central Ry. Co., 40 Iowa 341; Patterson v. Railroad Co., 76 Pa. St. 389; Gibson v. Pacific R. Co., 46 Mo. 163; Porter v Hannibal & St. Joseph R. Co., 60 Mo. 160; Illinois Central R. Co. v. Welch, 52 Ill. 183; Quaid v Cornwall, 13 Bush, 64; Flike v. Boston & Albany R. Co., 53 N.Y. 549; Plank v. New York Central R. Co., 60 N.Y. 607; Harper v. Railroad Co., 47 Mo. 567; Lewis v. Railroad Co., 59 Mo. 495; Greenleaf v. Railroad Co., 29 Iowa 14; Railroad Co. v. Sweet, 45 Ill. 197; Railroad Co. v. Conroy, 68 Ill. 560; Brabbits v. Chicago & N.W. Ry. Co., 38 Wis. 289.

Wilson & Gale, for respondent.

OPINION

Berry, J.

The plaintiff was employed as a night brakeman in the defendant's yard, where trains were made up, at Winona. Among other things it was his duty to assist in making up trains, and to couple cars. For the latter purpose it was necessary for him to go between cars in motion. It was defendant's custom, when necessary, to have the fire-boxes of its engines cleared of ashes, at any place upon the track in the yard where an engine chanced to stand, when the engineer or fireman thought best to take them out. The ashes were usually allowed to remain where they were dropped upon the track from one to four hours, until removed or scattered by men employed by defendant to keep the yard in order. In attempting to couple two cars, one of which was in motion, for which purpose it was necessary for him to go between them, the plaintiff stepped upon a heap of ashes, which had been left upon the track in the manner above mentioned, and, the ashes being wet, he slipped and fell, and the moving car passed over his leg, crushing it so that it had to be amputated. He brings this action for damages, claiming that the defendant was careless and negligent in depositing the ashes upon the track, and in suffering them to remain there.

Among other matters, the court instructed the jury as follows, viz.: "Another rule of law is that if a man engage in a service, and continues in a service, with a full knowledge of the manner in which his employer conducts his business, and without objection, he is deemed, in law, to have assumed and taken upon himself all the risks naturally incident to conducting business in that way, even although it be unsafe. A man is, of course, under no obligation to investigate and examine how his employer conducts his business, for the purpose of ascertaining whether safe or not. In the absence of knowledge to the contrary, a servant has a right to presume that his employer will conduct his business safely. But if a man enters and continues in a service, with knowledge of the manner in which the business is conducted, without objection to his employer, or any promise on the part of his employer to change the mode of doing business, he does it with his eyes open, assumes the risks, and cannot recover damages, even although this mode of conducting business be careless. The same is true if the mode of conducting the business is open and apparent, and the employe has ample and reasonable means of positive knowledge of the precise danger assumed. Hence, in this case, a material question is whether plaintiff either had positive knowledge of the custom of the railroad company in disposing of the ashes; or if it was open and notorious, and he had ample and reasonable means of positive knowledge of the fact, he would be deemed in law to have voluntarily assumed all the risks incident to the mode of conducting the business, and cannot recover even although the custom was unsafe." In another part of the charge, the court, referring to the defendant's custom of emptying ashes upon the track, instructed the jury as follows, viz.: "Did plaintiff have knowledge of this custom, or had he ample and reasonable means of positive knowledge of the custom, so that he ought to have known it? If he had, you must find a verdict for the defendant."

The plaintiff's counsel objects to those parts of the passages above quoted from the charge which instruct the jury as to the effect of the fact that an employer's mode of conducting business, though careless and unsafe, is open, and the employe has ample and reasonable means of positive knowledge of such mode. Some parts of the passages referred to, and bearing on the matter objected to, if they are detached from their context and from other parts of the charge, would be open to some...