Gates v. Southern Minnesota Railway Company

• Decision Date: 07 July 1881
• Citation: 9 N.W. 579,28 Minn. 110
• Parties: Isabel Gates, Administratrix, v. Southern Minnesota Railway Company
• Court: Minnesota Supreme Court

9 N.W. 579

28 Minn. 110

Isabel Gates, Administratrix, v. Southern Minnesota Railway Company

Supreme Court of Minnesota

July 7, 1881

Plaintiff's intestate was employed by defendant as fireman on a locomotive, and was, on August 27, 1877, while in defendant's employ, killed by an accident on defendant's road. It appeared from the evidence that, at the place where the accident occurred, there had been a washout the day before, and sand had been washed upon the track. The locomotive, to which were attached flat cars loaded with piles, was thrown from the track, and the piles were thrown upon deceased, crushing him to death.

This action was commenced in the district court for Houston county, to recover damages for causing such death. Upon a trial by a jury, before Farmer, J., plaintiff had a verdict and defendant appeals from an order refusing a new trial.

Order reversed, and a new trial ordered.

J. W Losey and C. W. Bunn, for appellant.

M. P Wing and W. H. Harries, for respondent.

OPINION

Gilfillan, C. J.

The evidence in this case was such that the question of defendant's negligence, and of contributory negligence on the part of plaintiff's intestate, was for the jury to determine; and it was not such that we can say the danger which caused his death was one of those which intestate knew, or which, in the exercise of proper care, he might have known, to be one of those incident to the employment that he was engaged in, and the risks of which he had assumed. In all respects the case was a proper one for a jury. But the charge of the court was likely to mislead the jury into applying a more severe rule as to the care and prudence required of defendant than is applicable as between master and servant. The failure alleged against defendant was to provide a suitable -- that is, a safe -- track for the running of a train on which the intestate was employed at the time he was killed. Its unsafe condition was caused by sand, which had been washed on it from a hill by the side of the track in a storm. Cooley on Torts, 557, states what is the duty of a master to his servant in such case, thus: "The law does not require him to guaranty the prudence, skill or fidelity of those from whom he obtains his tools or machinery, or the strength or fitness of the materials they make use of. If he employs such reasonable care and prudence, in selecting or ordering what he requires in his business, as every prudent man is expected to employ in providing himself with the conveniences of his occupation, that is all that can be required of him."

The same degree of care is required of the master, in keeping what is required in the business in good condition, as in originally selecting it. Where the master entrusts the duty of providing the tools, machinery and appliances necessary for performing his business and keeping them in safe condition to others, he is responsible for their neglect to employ that degree of care and prudence. As held by this court in Drymala v. Thompson, 26 Minn. 40 1 N.W. 255, those to whom a railroad company entrusts the duty of placing or keeping its track in safe condition for the running of cars, must, in respect to its other servants employed in running the cars, exercise that degree of care and prudence, and the company is liable to such...