Blomquist v. Chi., M. & St. P. Ry. Co.

Decision Date09 April 1895
CourtMinnesota Supreme Court
PartiesBLOMQUIST v. CHICAGO, M. & ST. P. RY. CO.

OPINION TEXT STARTS HERE

(Syllabus by the Court.)

1. Held, in this action, which was brought to recover for injuries said to have been the result of defendant's negligence when constructing a platform on which to rest a derrick, that from the evidence it conclusively appears that the foreman of the crew with which the plaintiff was working as a common laborer was a vice principal, for whose negligence defendant must be held responsible.

2. Certain assignments of error disposed of. Canty, J., dissenting, lays down some novel and interesting principles by which to determine when the superior servant is a vice principal as to the inferior servant.

Appeal from district court, Fillmore county; John Whytock, Judge.

Action by John Blomquist against the Chicago, Milwaukee & St. Paul Railway Company. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Affirmed.

The following is the charge of the court:

“This is a case brought by the plaintiff, Mr. Blomquist, against the Chicago, Milwaukee & St. Paul Railway Company, upon the ground that they negligently constructed a derrick which you have heard mentioned in the pleadings and evidence; that the construction of the foundation of this derrick was defective; and that thereby the plaintiff was injured,-that is, they were negligent in the defective manner in which they prepared this foundation. That is the real charge in the complaint, as I understand it. Now, the defendants deny this, and deny all negligence. The court is of the opinion, and so instructs you, that this Mr. Enger, the foreman,-it is conceded in these proceedings that he was the foreman of the gang,- that, from the undisputed evidence in the case, he represented the company, and the company would be responsible for his acts; that is, that he represented the company on the 8th of July, and the company would be responsible for his acts and orders on that occasion. The company is only responsible for a reasonable degree of care in providing suitable instrumentalities and appliances in the performance of its duty; and if you find from the evidence that they did not exercise a reasonably safe degree of care, and supply and construct a reasonably safe foundation for the derrick, and that the plaintiff himself did not know anything about the construction of it,-if you find these facts,-I instruct you that the company would be liable if it did not exercise a reasonable degree of care in the construction and preparation of this derrick under the circumstances. But they are not obliged to exercise anything but ordinary and reasonable care in the construction and supplying of these appliances for their employés. If the jury should find that the foundation upon which the derrick mentioned in the testimony was erected was defective in its construction and preparation for the work intended to be done by it, so that the same was not a reasonably safe one, for the purpose for which it was intended to be used, and that the plaintiff did not participate in the construction and preparation of the foundation, and did not know of such faulty construction, and that by reason thereof the derrick fell, and injured the plaintiff, then your verdict will be for the plaintiff in this case. Now, as I said before, the defendant denies this charge, and the question is as to whether the defendant exercised reasonable care in the furnishing proper material, and in the location and preparation for the foundation of this derrick; and, if you find that the defendant did not exercise such reasonable care as I have stated, you will find, as I have said, for the plaintiff.

“The defendants allege that they are not guilty of any negligence. Now, the question of damages is also before you for consideration. I will state that there is no dispute about the question; that is, that the plaintiff was injured. The controversy is about how it was done, and who was responsible for it. Now, the parties have brought in several physicians in this case, one of whom treated the plaintiff from the origin of the trouble, from the commencement of his hurt. They are competent witnesses and competent men. They have examined the plaintiff, and they have testified in this case. One of the medical witnesses called by this plaintiff testifies that he could not say whether the injury would be permanent or not. Now, that is a material question in this case with reference to the question of damages,-whether the injury would be permanent. If you find for the plaintiff, under the rule I have given you, you will then proceed to determine the amount of damages; that is, you will estimate the time he has lost, and the expense of nursing during his sickness; that would be a proper element for you to take into consideration; then the pain which he endured from the hurt, and then the question of the permanency of the injury; the evidence on all subjects I have mentioned to you. The facts and credibility of the witnesses are entirely for your determination, under all the facts of the case; but you would be governed in the question of damages by the careful scrutiny of the evidence of the witnesses, because it is almost entirely to be determined from expert testimony,-from the testimony of the physicians; and, in the determination of the question of his injury, you will carefully weigh and consider their testimony. If you find for the plaintiff in this case, you will assess his damages under the rules I have given you, and under all the circumstances and facts in the case. If you find for the defendant, you will say: ‘We, the jury, find for the defendant.”

The defendant excepts to that part of the charge of the court wherein the jury are instructed that Mr. Enger, the foreman, was a representative of the company, and was in the position of vice principal, and that the company would be responsible for his acts on that occasion. Defendant also excepts to that part of the charge of the court instructing the jury to the effect that, if the defendant failed to prepare and construct a reasonably safe foundation for this platform and derrick, the defendant would be liable. Defendant also excepts to that part of the charge wherein the court instructs the jury that if the jury should find that the foundation upon which the derrick was erected was defective in its construction and preparation for the work intended to be done by it, or that the same was not a reasonably safe one for the purpose for which it was intended to be used, and that the plaintiff did not participate in the construction of the foundation, and did not know of such faulty construction, and that, by reason thereof, the derrick fell, and injured the plaintiff, the verdict should be for the plaintiff. Defendant also excepts to the refusal of the court to give instruction No. 1 asked by the defendant, which reads as follows: “The jury are instructed that there is no evidence in this case that the defendant failed to provide sufficient material for the construction of the platform.” Defendant also excepts to the refusal of the court to give No. 2 asked by the defendant, which reads as follows: “The jury are instructed that there is no evidence in this case that the proximate cause of the accident was a failure on the part of the defendant to provide a sufficient quantity of material for the erection of said platform.” Defendant also excepts to the refusal of the court to give instruction No. 3 asked for by the defendant, which reads as follows: “If the jury believe that, in the prosecution of the work carried on at the time of the accident, the gang to which the plaintiff belonged were provided with a derrick and other appliances connected therewith, which were to be set up and erected by the men composing the gang, upon a platform to be erected by them, and the defendant had provided suitable timbers and material for the erection of said platform, and the said platform was erected by men in said gang, under the general direction of said foreman, and the said platform fell by reason of careless or improper construction of said platform, then your verdict must be for the defendant.”

The following are the assignments of error: (1) The court erred in refusing to instruct the jury to return a verdict for the defendant, for the reason that the negligence shown, if any, was that of fellow servants of the plaintiff, for which the defendant was not liable. (2) The court erred in instructing the jury that Enger, the foreman of the gang in which plaintiff was employed, from the undisputed evidence, represented the defendant, and that it would be responsible for his acts and orders on that occasion. (3) The court erred in instructing the jury that, if the defendant did not exercise a reasonably safe degree of care to supply and construct a reasonably safe foundation for the derrick, the defendant would be liable. (4) The court erred in instructing the jury that if they should find that the foundation upon which the derrick was erected was defective in its construction and preparation for the work intended to be done by it, so that the same was not a reasonably safe one for the purpose for which it was to be used, and that the plaintiff did not participate in the construction and preparation of the foundation, and did not know of such faulty construction, and that, by reason thereof, the derrick fell, and injured the plaintiff, then the verdict should be for the plaintiff. (5) The court erred in refusing to give the first instruction asked by the defendant. (6) The court erred in refusing to give the second instruction asked by the defendant. (7) The court erred in refusing to give the third instruction asked by the defendant. (8) The court erred in permitting the witness Johnson to testify on behalf of the plaintiff as to whether there was furnished material sufficient in quality and quantity to make...

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  • Hamlin v. Lanquist & Illsley Co.
    • United States
    • Minnesota Supreme Court
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    ...of which the servants are required to exercise a discretion and assume the risk of each other's negligence. Blomquist v. Chicago, M. & St. P. Ry. Co., 60 Minn. 426, 62 N. W. 818; Carlson v. Northwestern Tel. Exch. Co., 63 Minn. 428, 65 N. W. 914. Therefore the trial court correctly instruct......
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    ...has been injured by its nonperformance. Drymala v. Thompson, 26 Minn. 40; Carlson v. Northwestern Tel. Exch. Co., supra; Blomquist v. Chicago, M. & St. P. Ry. Co., supra; Sims v. American Steel B. supra; Abel v. Butler-Ryan Co., supra; Benzing v. Steinway, 101 N.Y. 547; Galvin v. Mayor, 112......
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    • United States
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    ...of which the servants are required to exercise a discretion and assume the risk of each other's negligence. Blomquist v. Chicago, M. & St. P. Ry. Co., 60 Minn. 426, 62 N.W. 818; v. Northwestern Tel. Exch. Co., 63 Minn. 428, 65 N.W. 914. Therefore the trial court correctly instructed the jur......
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