Anderson v. Great Northern Railway Company
| Decision Date | 05 December 1898 |
| Docket Number | 11,304 - (131) |
| Citation | 77 N.W. 240,74 Minn. 432 |
| Parties | ED. ANDERSON v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
From an order of the district court for Norman county, Ives, J denying a motion for a new trial, after a verdict in favor of plaintiff for $300, defendant appealed. Reversed.
Railway -- Injury Caused by Fellow Servant -- Instruction to Jury Erroneous.
The plaintiff, with others, was at work repairing a portion of defendant's roadbed, and was injured by the alleged negligence of a fellow servant in releasing, without giving any warning, a track jack which held up a part of the track which by reason thereof fell upon the plaintiff's foot. The evidence on the trial was such that it was a question for the jury whether the work was being executed under such conditions and circumstances as to expose the plaintiff to the peculiar hazards incident to the use and operation of railroads. The trial court instructed the jury that, if it was the custom to give notice before releasing the jack, and such notice was not given, the jury would be warranted in finding the fellow servant operating the jack guilty of negligence, and that the defendant would be liable for the result of such negligence. Held error.
C. Wellington, for appellant.
The court erred in allowing plaintiff to give his opinion as to the practicability or possibility of performing the work in which he was engaged, without being warned by the man who worked and operated the track jack. See Couch v. Charlotte, 22 So. C. 557; Way v. Illinois, 40 Iowa 341; City v. Sherwood, 39 Kan. 690; Lawson v. Chicago, 64 Wis. 447; Weeks v. Town, 54 Vt. 638; Bliss v. Inhabitants, 8 Allen, 564; Kelley v. Town, 31 Wis. 179. The court erred in denying defendant's motion to direct a verdict in its favor, as there was neither allegation nor evidence in the case connecting the alleged unusual haste in performing the work with the carelessness of plaintiff's fellow servant in permitting the track to drop. See Blomquist v. Great Northern Ry. Co., 65 Minn. 69; Nichols v. Chicago, M. & St. P. Ry. Co., 60 Minn. 319; Leier v. Minnesota B.L. Ry. & T. Co., 63 Minn. 203; Mikkelson v. Truesdale, 63 Minn. 137; Lavallee v. St. Paul, M. & M. Ry. Co., 40 Minn. 249; Johnson v. St. Paul & D.R. Co., 43 Minn. 222; Pearson v. Chicago, M. & St. P.R. Co., 47 Minn. 9.
G.S. 1894, § 2701, applies to those employees who are exposed to the peculiar hazards incident to the use and operation of railroads, and whose injuries are the result of such dangers. Johnson v. St. Paul & D.R. Co., supra.
Peter Sharpe and Calkins & Calkins, for respondent.
It was not error for the court below to allow plaintiff to testify as to his impressions in regard to the safety of the work without being warned whenever the track was lowered. See Beatty v. Gilmore, 16 Pa. 463; Graham v. Pennsylvania, 139 Pa. 149; Laughlin v. Street, 62 Mich. 220; Horan v. Chicago, 89 Iowa 328; Cross v. Lake Shore, 69 Mich. 363; Girard v. City, 92 Mich. 610; Merkle v. Township, 68 Mich. 133; Healy v. Visalia, 101 Cal. 585; McCormick v. Burandt, 136 Ill. 170; McNearey v. Reading, 150 Pa. St. 611; Kehler v. Schwenk, 151 Pa. St. 505. The case at bar is nearly identical with that of Blomquist v. Great Northern Ry. Co., supra. The latter case, plaintiff contends, is decisive here.
The plaintiff was one of a crew of men working for the defendant in repairing its roadbed, which had been washed out by high water. The ties and rails where the washout occurred were blocked up by timbers, so that trains continued to run notwithstanding the break in the roadbed. Dirt and gravel were dumped in to fill the break, and the plaintiff was at work, with his fellow servants, shoveling the dirt and gravel, in order to remove the timbers that temporarily supported the track. In this work of removal one side of the track was raised by a track jack, operated by a lever, by one of the men, who released the lever without giving any warning to the workmen, as plaintiff claims, and the track came down, and his foot was caught between one of the ties of the track and one of the timbers which had been used to support the track, and his foot was thereby crushed. He brought this action to recover damages for the injury, and had a verdict for $300.
The defendant appealed from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial.
The complaint, for the purpose of bringing the case within the doctrine of the case of Blomquist v. Great Northern Ry Co., 65 Minn. 69, 67 N.W. 804, and making it appear that the plaintiff was injured while exposed to peculiar hazards incident to the use and operation of railroads, within the meaning of the statute (G.S. 1894, § 2701), alleged that the work was being executed in great and extraordinary haste, so as to complete the work and replace the track before the arrival of any trains. This allegation was put in issue by the answer, which also affirmatively alleged that plaintiff's injury was caused by one of the ordinary risks incident to the plaintiff's employment...
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