Anderson v. Chicago & N.W. Ry. Co.
| Decision Date | 15 March 1932 |
| Docket Number | 7196. |
| Citation | 241 N.W. 516,59 S.D. 543 |
| Parties | ANDERSON v. CHICAGO & N.W. RY. CO. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; Ray E. Dougherty Judge.
Action by Oscar Anderson against the Chicago and Northwestern Railway Company. From a judgment for plaintiff and from order denying a new trial, defendant appeals.
Reversed with directions.
Churchill & Benson, of Huron, for appellant.
Ostensoe & Ostensoe, of Waseca, Minn., and B. O. Stordahl, of Sioux Falls, for respondent.
Plaintiff who was an employee of the Wagner-Erling Company of Sioux Falls, S. D., commenced this action, alleging negligence upon the part of the defendant, to recover damages for personal injuries resulting from a fall when the floor of the freight depot of the defendant company gave way under the weight of sacks of cement which plaintiff and other workmen were storing in the freight depot. Defendant in its answer denies generally the allegations of the complaint, pleads assumption of risk by the plaintiff, and also pleads that the injuries, if any, sustained by plaintiff were caused, or contributed to, by the negligence of the plaintiff. Trial of the action resulted in a verdict for the plaintiff. From judgment rendered thereon and from order denying motion for new trial, defendant appeals.
The Wagner-Erling Company was engaged in paving a highway in the vicinity of Waseca, Minn., and received consignments of cement at that station over the system of the defendant company. Iner Zetterlind, a foreman of the construction company, requested of A. J. Thomas, defendant's station agent at Waseca, permission to store a carload of cement in the freight depot. Thomas told Zetterlind that he had no authority to grant the request, but would communicate with the district freight agent at Winona, Minn. Permission was granted, and Thomas marked off a space in the east end of the freight depot. Plaintiff testified that he was instructed by Thomas to pile the cement eighteen sacks high; that Thomas stated that it was necessary to pile the cement in that manner in order to store it in the allotted space. Thomas denied that he gave any such instruction, or that he had any conversation with plaintiff with reference to the storing of the cement. It is undisputed that a number of tiers were piled eighteen sacks high, and that plaintiff was standing on tiers piled six sacks high when the floor gave way. Upon such testimony, the argument is made that defendant, acting by its agent, was negligent when it instructed the plaintiff to place an excessive load upon the floor. A motion for directed verdict was made by the defendant upon the contention, among others, that there was no evidence of negligence upon the part of the defendant.
To justify a recovery in the action, negligence upon the part of the defendant must be established. There can be no actionable negligence justifying a recovery in the absence of an imposed duty and a violation thereof resulting in damages to the plaintiff. The contention of the plaintiff is that he was on the premises of the defendant at the time of the accident as an invitee, and that defendant was under obligation to exercise care for his safety. An invitation by the owner or occupant of premises is implied by law where the person going on the premises does so in the interest of the owner or occupant, or in a matter of mutual interest, or in the usual course of business. 20 R. C. L. § 60; Shearman & Redfield, Negligence (6th Ed.)§ 706. It must have been within the contemplation of the defendant company when it granted permission to store the cement that the work of unloading the car would be done by employees of the Wagner-Erling Company. The plaintiff was on the premises in pursuance to an understanding of his employer and the defendant, and the duty of the defendant to the employees of the construction company upon the premises to unload the cement was essentially the same as to the members of the company itself. Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, 203, 14 L. R. A. (N. S.) 1118. The status of the plaintiff was that of an invitee.
The general rule is that it is the duty of an owner or occupant of premises who expressly or by implication invites or induces a person to come upon his premises to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. 45 C. J. 826, 836; 20 R. C. L. § 51; Shearman & Redfield, Negligence (6th Ed.) § 706. This, however, is the extent of the duty; the owner or occupant is not an insurer as to the safe condition of the premises.
The plaintiff expressly alleged that the floor gave way by reason of its defective and unsafe condition. There is...
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