Beleal v. Northern Pac. Ry. Co.
| Decision Date | 31 May 1906 |
| Citation | 108 N.W. 33,15 N.D. 318 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes county; Burke, J.
Action by Roy Beleal, by E. J. Beleal, his guardian ad litem against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
Reversed and judgment ordered for defendant.
Order reversed, and judgment ordered for defendant.
Ball Watson & Maclay, for appellant.
It was unnecessary to warn plaintiff of dangers which were obvious and which he understood, and the rule applies to minors. Naylor v. C. & N.W. Ry. Co., 11 N.W. 24; Casey v. St. P., M. & O. Ry. Co., 62 N.W. 624; Berger v St. M. & M. Ry. Co., 38 N.W. 814; Burkley v. Gutta Percha & Rubber Mfg. Co., 21 N.E. 717; Ogley v. Miles, 34 N.E. 1059; Hickey v. Taafe, 12 N.E. 286; Downey v. Sawyer, 32 N.E. 654; De Souza v. Stafford, Mills, 30 N.E. 81; Hightower v. Gray, 83 S.W. 254; Williamson v. Sheldon Marble Co., 29 A. 669; Tinkham v. Sawyer, 27 N.E. 6; Herold v. Pfister, 66 N.W. 355; Terry v. Schmidt, 115 F. 627; Cirach v. Woolen Co., 15 N.E. 579; Levy v. Bigelow, 34 N.E. 128.
A master need furnish only such appliances as are suitable to accomplish the work. Richards v. Rough, 18 N.W. 785; Sweeney v. Berlin & Jones Envelope Co. , 358; Delaware River Works v. Nuttel, 13 A. 65; Naylor v. C. & N.W. Ry. Co., supra.
Chap. 131, Laws of 1903, is unconstitutional and void in toto or its purpose and scope must be referred to "railroad hazards" proper. Lavall v. St. P., M. & M. Ry. Co., 41 N.W. 974; Pearson v. C. M. & St. P. Ry. Co., 41 N.W. 34; Johnson v. St. P. & D. Ry. Co., 45 N.W. 156; Weisel v. Eastern Ry. of Minn., 82 N.W. 576; Herrick v. Same, 127 U.S. 210, 8 S.Ct. 1176.
In Minnesota cases holding railroad companies liable, the line of demarcation limiting liability to hazards peculiar to railroads is consistently maintained. Bloomquist v. Gt. N. Ry. Co., 67 N.W. 804; Leier v. Transfer Co., 65 N.W. 269; Nichols v. C. M. & St. P. Co., 62 N.W. 386; Steffenson v. C. M. & St. P. Co., 47 N.W. 1068; Smith v. St. P. & D. Co., 46 N.W. 149; Schus v. Bowers-Simpson Co., 89 N.W. 68; Iowa sustains the same rule. Pierce v. Cent. Ia. Ry., 34 N.W. 783; Frandson v. Railway Co., 36 Iowa 372; Deppe v. Ry. Co., 36 Iowa 52; Nelson v. C. M. & St. P. Ry. Co., 35 N.W. 611; Rayburn v. Cent. Iowa Ry. Co., 35 N.W. 606; Schroeder v. Ry. Co., 47 Iowa 375.
The statute of Iowa was adopted in Kansas, and the same construction given it there. Missouri, etc., Ry. Co. v. Haley, 25 Kan. 26.
Lee Combs, for respondent.
Where a master orders a servant into dangerous service, without proper warning or instructions, and sometimes where they are given, the employer would be answerable for the minor's injury. 4 Thompson on Neg., section 3818; McMillon Marble Co. v. Black, 14 S.W. 479; Turner v. Norfolk & W. Ry. Co., 22 S.E. 83; Wolski v. Knapp, Stout & Co., 63 N.W. 87; Palmer v. Mich. Cent. R. R. Co., 49 N.W. 613; Allen v. Jakel, 73 N.W. 555; Hoffman v. Adams, 64 N.W. 7; Kailar v. N.W. Bedding Co., 48 N.W. 779.
Whether the minor warned was negligent, or whether there was negligence of the master in failing to warn and instruct, are questions for the jury. Chopin v. Badger Paper Co., 53 N.W. 452; N.Y. Biscuit Co. v. Rouss, 74 F. 608; Chicago Am. Pressed Brick Co. v. Reinnieger, 29 N.E. 1106, 33 Am. St. Rep. 249; Hanson v. Ludlaw Mfg. Co., 38 N.E. 363.
The master must provide and maintain reasonably safe places and instrumentalities in which and with which to work. Mayer v. Leibman, 44 N.Y.S. 1064; Shoemaker v. Bryant Lbr. Co., 68 P. 380; Meyer v. Morgan, 52 N.W. 174; Thomas v. Ross, 75 F. 552; Peerpont Fireproof Const. Co. v. Hansen, 69 Ill.App. 659; Knickerbocker Ice Co. v. Bernardt, 95 Ill.App. 23.
Chap. 131, Laws of 1903, is constitutional. Ga. etc., Co. v. Goldwire, 56 Ga. 196; Marsh v. S. Car. R. Co., 56 Ga. 274; So. R. Co. v. Johnson, 114 Ga. 329; Ga. R., etc., v. Hicks, 22 S.E. 613.
Limiting the operation of the law to railroad business proper, it is constitutional. Mo. P. R. Co. v. Mackey, 127 U.S. 205, 8 S.Ct. 1161, 32 L.Ed. 107; Minn. & St. L. Ry. Co. v. Herrick, 127 U.S. 109, 8 S.Ct. 1176; Ch., M. & St. P. Ry. Co. v. Artery, 137 U.S. 515, 11 S.Ct. 129; Chicago, Kan. & W. Ry. Co. v. Pontius, 157 U.S. 209, 15 S.Ct. 185.
Persons assisting in loading and unloading railroad material, fixing a dead engine are within the rule as to liability for neglect of co-employes. A. T. & S. F. Ry. Co. v. Koehler, 15 P. 567; A. T. & S. F. Ry. Co. v. Brassfield, 32 P. 814; Ch., R. I. & P. R. Co. v. Stahley, 62 F. 363; 11 C. C. A. 88; Butler v. Ch., B. & Q. R. Co., 54 N.W. 208; Mikkelson v. Truesdale, 65 N.W. 260.
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 these 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 employe of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employes, to any person sustaining such damage; and no contract which restricts such liability shall be legal or binding." With the exception of...
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