Birmingham v. Duluth, Missabe & Northern Railway Company
| Decision Date | 20 December 1897 |
| Docket Number | 10,647--(61) |
| Citation | 73 N.W. 409,70 Minn. 474 |
| Parties | JOHN BIRMINGHAM v. DULUTH, MISSABE & NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $ 15,000 for personal injuries suffered by plaintiff while in the employ of defendant company. Defendant demurred to the complaint. The substance of the allegations of the complaint is stated in the opinion of CANTY, J. From an order overruling the demurrer, Ensign, J., defendant appealed. Affirmed.
Order affirmed.
Joseph B. Cotton and Geo. Welwood Murray, for appellant.
The parties were not engaged in the actual operation of a railroad within the meaning of Laws 1887, c. 13. Lavallee v. St. Paul, 40 Minn. 249 (1889). Cushing's act causing the injuries to plaintiff, was the act of a fellow servant. Lindvall v. Woods, 41 Minn. 212; Brown v. Winona, 27 Minn. 162; Fraser v. Red River, 42 Minn. 520; Marsh v. Herman, 47 Minn. 537; Ell v. Northern Pacific, 1 N.D. 336; Blomquist v Chicago, 60 Minn. 426; Carlson v. Northwestern, 63 Minn. 428; Soutar v. Minneapolis, 68 Minn. 18; Lundberg v. Shevlin, 68 Minn. 135. See, also Anderson v. C. N. Nelson, 67 Minn. 79; Kielley v. Belcher, 3 Sawyer, 500; McLean v. Blue Point, 51 Cal. 255; Wood v. New Bedford, 121 Mass. 252; Kelley v. Norcross, 121 Mass. 508; Bergstrom v. Staples, 82 Mich. 654; Ell v. Northern Pacific, supra; Olson v. St. Paul, 38 Minn. 117; Anderson v. Winston, 31 F. 528; Crispin v Babbitt, 81 N.Y. 516; Cullen v. Norton, 126 N.Y. 1; Friedrich v. City, 68 Minn. 402; Heine v. Chicago, 58 Wis. 525; Hennig v. Globe (Mich.) 71 N.W. 156; Morch v. Toledo (Mich.) 71 N.W. 464; Cowles v. Chicago, 102 Iowa 507. Laws 1895, c. 173, is merely declaratory of the common law and does not change the rule of law as to contributory negligence and assumption of risks by the servant. Lundberg v. Shevlin, supra; Hess v. Adamant, 66 Minn. 79; Soutar v. Minneapolis, supra.
The defendant performed all its duties in respect to instrumentalities if and when it furnished machinery of the same kind and style as is in common use generally where the same or similar work is performed. Werbowlsky v. Fort, 86 Mich. 236; Murphy v. Great Northern, 68 Minn. 526; Griggs v. City, 9 Minn. 231 (246); Mann v. Morewood, 5 Sandf. 557, 564; Flynn v. City, 134 Mass. 351; Howland v. Milwaukee, 54 Wis. 226; Collier v. Steinhart, 51 Cal. 116; Hanna v. Granger, 18 R. I. 507; Hart v. Peters (Wis.) 13 N.W. 219; Crown v. Orr, 140 N.Y. 450; Larich v. Moies, 18 R. I. 513; Loughlin v. State, 105 N.Y. 159; Hofnagle v. New York, 55 N.Y. 608; McCosker v. Long Island, 84 N.Y. 77; Laning v. New York, 49 N.Y. 521; Stutz v. Armour, 84 Wis. 623; Kliegel v. Weisel, 84 Wis. 148; Dwyer v. American, 82 Wis. 307; Kenney v. Shaw, 133 Mass. 501; Flynn v. City, 134 Mass. 351; Thompson v. Chicago, 18 F. 239; Buckley v. Gould, 14 F. 833.
H. H. Phelps, for respondent.
It is not necessary to charge negligence in terms if facts are set out which raise a presumption of negligence. 2 Thompson, Neg. 1246, § 26, and cases cited; Blue v. Briggs, 12 Ind.App. 105; Louisville v. Stommel, 126 Ind. 35; Franklin v. Winona, 37 Minn. 409; Myhre v. Tromanhauser, 64 Minn. 541; Rolseth v. Smith, 38 Minn. 14; Lindvall v. Woods, 41 Minn. 212; Carlson v. Northwestern, 63 Minn. 428; Blomquist v. Chicago, 60 Minn. 426, 433, 434; Abel v. Butler-Ryan, 66 Minn. 16; Hess v. Adamant, 66 Minn. 79; Johnson v. Minneapolis, 67 Minn. 141; Lundberg v. Shevlin-Carpenter, 68 Minn. 135; Friedrich v. City, 68 Minn. 402; Murphy v. Great Northern, 68 Minn. 526.
A general allegation of negligence is sufficient to admit proof of particular acts constituting negligence and is good against demurrer. Clark v. Chicago, 28 Minn. 69; Roger v. Truesdale, 57 Minn. 126; Pittsburg v. Welch, 12 Ind.App. 433; Citizens v. Lowe, 12 Ind.App. 47; Ohio v. Craycraft, 5 Ind.App. 335; Preston v. St. Johnsbury, 64 Vt. 280.
This was an action to recover for personal injuries resulting from the alleged negligence of the defendant. The appeal is from an order overruling a demurrer to the complaint on the ground that it did not state a cause of action. The contention of the defendant is that it appears from the face of the complaint that the plaintiff's injuries were caused either by his own negligence or by that of his fellow servant, one Cushing, the foreman and engineer; it being admitted by the plaintiff that the case does not fall within G. S. 1894, § 2701. Inasmuch as negligence is a mixed question of law and fact, and hence an allegation that a thing was negligently done or omitted one of fact, and not a mere conclusion of law, it is very rarely the case that a defendant can successfully demur to such a complaint, unless the pleader had purposely attempted to commit legal suicide. As was said in Rolseth v. Smith, 38 Minn. 14, 35 N.W. 565:
"Perhaps a fair test of the sufficiency of the pleading in that regard is whether, under its allegations, evidence might be introduced sufficient to establish a cause of action."
The complaint in this case is so lengthy, by reason of statements of matters of detail, that it must be left to speak for itself. And as it is impossible to say, in advance, what light the evidence will cast upon the situation, it might be misleading rather than helpful to enter into any extended analysis or discussion of the facts alleged.
Upon the question of plaintiff's own conduct, all we deem it necessary to say is that it does not appear -- not conclusively, at least -- that he was guilty of contributory negligence, or that he knew, or in the exercise of reasonable care ought to have known, all the risks incident to the execution of the order of the foreman. Upon the facts alleged, that would be, at least, a question for the jury. The fact that contributory negligence need not be negatived in the complaint, but is purely a matter of defense, adds force to this view. Leaving out of view for the present any other charge of negligence against the defendant, it might, under the allegations of the complaint, be a question for the jury whether, under the circumstances, it was not the duty of the defendant to give the plaintiff warning of the risks incident to the performance of his duties. If it was, this was an absolute duty of the master, for the neglect of which he could not absolve himself by leaving the performance of it to some one else. If such a duty rested on the defendant, the foreman, Cushing, who was the only person present who had charge of the work and of the men, was, as to the performance of that duty, the representative of the defendant and for his negligence, if any, in that regard, the defendant is responsible. The fact that the same person was both foreman and engineer, and that in the latter respect he was a mere fellow servant with the plaintiff, does not alter the case.
Order affirmed.
CONCUR BY: CANTY
I concur in the result arrived at for the following reasons: This is an action for damages for personal injuries alleged to have been caused by the negligence of defendant while plaintiff was in its employ in and about the operation of a steam shovel.
The complaint alleges, in substance, that the steam shovel was attached to a large swinging derrick or crane, which projected upward and outward from the deck of a railroad car, on which were two upright steam engines which operated the steam shovel; that between the steam engines and the foot of the swinging crane there were drums, around which chains were wound and used in operating the shovel; that the drums were operated by steam, and controlled by levers, which were manipulated by the engineer, who was also the foreman of the crew of employees, including plaintiff; that the engines were inclosed in a small house built on the deck of the car; that there was a small door on the side of this house, and within the house, between the engines and the side of the house, there was a long, narrow passage leading from the door to a large jack or pan light which was used to furnish light to the employees loading the cars with earth, when the steam shovel was being operated in the nighttime; that the light was placed on "the upper left-hand corner" of the shovel, and was made by burning waste saturated with oil. It is further alleged that the floor near and about the engines was at the time in question
"Very greasy and slippery, and one passing them was very liable to slip and fall," and "when said shovel, drums and engines were in motion, they caused said car to rock and pitch, which made the floor very difficult to walk upon, and dangerous to one near said machinery."
It is also alleged that plaintiff was employed at night as a watchman; that a part of his duties was to keep the jack light in order; and on the night in question he was ordered by the foreman "to touch up or fix the jack light." It is further alleged:
"That the only way plaintiff or any one else could reach said jack or pan lamp or light was by passing from near the doors of said shovel car, by and near said engines and drums, to the left-hand corner thereof; that, when said command or order was given to the plaintiff by said H. W. Cushing (foreman) the plaintiff was standing near the left-hand door of said shovel car, and said H. W. Cushing at the front of said car near said levers; that, immediately after said command or order was given, the plaintiff, in obedience thereto and in the exercise of due care and caution, started to fix or touch up said jack light, and attempted to pass by the engine nearest him, when said H. W. Cushing carelessly, negligently, and without any warning to the plaintiff, started said steam shovel and machinery in motion, which made...
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