Beleal v. N. Pac. Ry. Co.

• Decision Date: 31 May 1906
• Citation: 15 N.D. 318,108 N.W. 33
• Parties: BELEAL v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

15 N.D. 318

108 N.W. 33

BELEAL

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

May 31, 1906.

Syllabus by the Court.

The evidence shows that there was no common-law liability on the part of the defendant for the plaintiff's injury.

Chapter 131, p. 178, Laws 1903, making railroad companies liable to an employé for injuries caused by the negligence of a co-employé, applies only to those employés engaged in operating the railroads, and so exposed to the peculiar damages attending that business.

The work in which the plaintiff and his fellow servant were engaged was not that kind of work to which the statute applies.

Appeal from District Court, Barnes County; Edward T. Burke, Judge.

Action by Roy Beleal, by E. J. Beleal, his guardian ad litem, against the Northern Pacific Railway Company. Judgment for plaintiff, defendant appeals. Reversed, and judgment ordered for defendant.Ball, Watson & Maclay, for appellant. Lee Combs, for respondent.

ENGERUD, J.

This is an action brought by a minor, who is represented by a guardian ad litem, to recover damages for an injury suffered while in the employ of the defendant railroad company, for which injury he claims the company is liable. He alleges that the injury was caused by negligence for which the company is liable on common-law principles, and also claims that the defendant is liable under chapter 131, p. 178, Laws 1903, because the injury was caused by the negligence of a fellow servant. The trial court denied defendant's motion for a directed verdict, and submitted the question of liability to the jury. There was a verdict for plaintiff, and judgment accordingly. The court denied defendant's alternative motion for judgment notwithstanding the verdict, or for a new trial. The defendant appealed from that order.

The appellant assigns as error the denial of said several motions, and the assignments also question the propriety of the instructions to the jury. There is no dispute as to the facts. The plaintiff, at the time of the injury, December 31, 1903, was 16 years of age and lived with his parents at Valley City, where the accident occurred. He was large and strong for a boy of his age, and intelligent. Some time before the accident, the company had a force of men, in charge of a foreman, at work cutting and removing ice from the Sheyenne river at Valley City, and loading it into cars for the use of the company. The plaintiff was engaged to assist in this labor and had been at work three days before the accident. The blocks of ice were taken from the river to a platform or staging on the bank about 8 feet high. The platform was about 20 feet from the track. The ice was conveyed from this platform to the cars by sliding it down one or the other of three open chutes extending from the platform to the track. A car was placed at the lower end of each chute, so that three cars could be loaded at the same time. Guard rails were fastened on the edges of each chute so as to prevent the blocks of ice from falling off on the sides. The lower end of the chutes did not extend to the edge of the car that was being loaded. The blocks of ice were often broken and crushed in the chute, and it was necessary to have a means of disposing of the crushed and broken pieces of ice which were constantly accumulating at the bottom of the chute. In order to do this the chutes were so constructed as to leave a space about two feet wide between the lower end of the chute and the edge of the car. When the car was in position, beams were laid across so as to bridge this space. These beams had to be removed and replaced every time a loaded car was to be taken away and an empty one put in position for loading. The broken and crushed ice was pushed or shoveled off the sides of this temporary platform, and a man had to be kept at work on the ground beneath to prevent its accumulation in sufficient quantities to block the track. The plaintiff was so engaged when he was injured by a large block of ice falling upon him, badly crushing and lacerating the muscles of his left leg. The block of ice had been broken in the chute and was unfit to be loaded. One of the workmen above had therefore pushed it off the said temporary platform without warning the plaintiff, who was at work below. Plaintiff asserts that it was an act of negligence, for which the defendant is liable, that no guard rail was constructed so as to prevent the broken ice from being pushed off the platform. This contention is manifestly untenable. Such a guard rail would have defeated the purpose for which the temporary platform was constructed. Moreover, the danger to one underneath would have been just as great whether the ice was pushed off or lifted or thrown off, provided, in either case, there was no warning.

The contention that the defendant is liable because the foreman put this boy to work in this hazardous position, without warning him of the danger, is equally untenable. A boy 16 years of age of ordinary intelligence could not possibly fail to know and appreciate the danger of working underneath the edge of the platform. Any amount of explanation of those dangers would convey no more information than his eyes disclosed. The injury was not the result of any lack of knowledge of the risk, but was wholly due to the negligence of the man above, who pushed the heavy piece of ice off without warning to the boy below.

There was no evidence whatsoever of any negligence imputable to the defendant as a master, on common-law principles. The defendant is liable only, if at all, by reason of the provisions of chapter 131, p. 178, Laws 1903: “Every railroad company organized or doing business in this state shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employés, to any person sustaining such damage; and no contract which restricts such liability shall be legal or binding.” With the exception of the last clause, this statute is a verbatim copy of the Kansas law on the same subject. Comp. Laws Kan. 1879, c. 84, § 29. Though differing slightly in phraseology, it is, in substance, identical with the statute which was in force in Iowa from 1862 to 1872 (section 7, c. 169, p. 198, Laws Iowa 1862), and with the statute enacted in Minnesota in 1887, which is still in force in that state (chapter 13, p. 69, Laws Minn. 1887). It is quite clear, from the title of the act, as well as from the fact that it was evidently borrowed from a sister state where it had been construed, that the word “agent” was not used in a strict sense, but was intended to include employés within its meaning. Giving the word “agent” that meaning, it is clear that the act, if applied literally, is broad enough to impose upon the defendant railroad company liability for the negligence of the plaintiff's fellow servant. The appellant contends, however, that the language of the act cannot be taken literally. Counsel insists that the act imposes this extraordinary liability upon a railroad corporation only in those cases where an employé is injured by the negligence of a fellow servant while engaged in some railroad employment which exposes the employés to those hazards which are peculiar to the use and operation of railroads. We agree with counsel's contention. The fact that the statute was evidently borrowed from a sister state, where it had received a settled construction more than 20 years before it was adopted here, is very persuasive evidence that the Legislature intended to adopt the construction which the parent statute had received. This law was construed in Kansas in 1881, in the case of Missouri Pac. Ry. Co. v. Haley, 25 Kan. 35. That court said that the act was borrowed from the Iowa act of 1862, and that, following the construction placed upon it in Iowa, it should be construed to embrace only those persons more or less...