Blomquist v. Chicago, Milwaukee & St. Paul Ry. Co., No. 9187.

CourtSupreme Court of Minnesota (US)
Writing for the CourtCollins
Citation60 Minn. 426
Decision Date09 April 1895
Docket NumberNo. 9187.

Page 426

60 Minn. 426
No. 9187.
Supreme Court of Minnesota.
April 9, 1895.

Appeal by defendant from an order of the district court for Fillmore county, Whytock, J., denying a motion for a new trial on condition that plaintiff would consent to accept $4,000 as the verdict. Plaintiff consented to remit $1,000 of the verdict, and accept the sum named by the court. Affirmed.

The facts are stated in the opinion. Defendant's assignments of error therein referred to were as follows: The court erred: "(2) 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) 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) 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

Page 427

the plaintiff, then the verdict should be for the plaintiff." "(8) 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 the platform of the derrick reasonably and suitably safe, so it would not fall down. (9) In permitting the witness Case to testify on behalf of the plaintiff that the foundation and platform erected as described by the witness Johnson were not, in his opinion, properly planned and constructed for the use to which they were put, and were not reasonably safe upon which to erect and operate a derrick for lifting stone."

Defendant's requests for instructions referred to in the opinion were as follows: (1) "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." (2) "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." (3) "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."

H. H. Field and Wells & Hopp, for appellant.

Gray & Thompson and Davis, Kellogg & Severance, for respondent.


The plaintiff was injured by the falling of a derrick while in defendant's employ, and brought this action to recover damages. The verdict was in his favor, and the appeal is from an order denying defendant's motion for a new trial. The assignments of error go to rulings of the court in the admission of evidence, its refusal to direct a verdict for defendant, and its refusal to give certain instructions to the jury.

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As said by appellant's counsel in their brief, the controlling question in the case is whether the accident resulted from the negligence of plaintiff's fellow servants. If it did, it must be admitted that plaintiff cannot recover. The facts were that plaintiff had been in defendant's employ for several months with a crew of stone masons, who went from place to place along the railway lines, repairing and rebuilding bridge abutments. He was a common laborer, and, with other laborers, aided the masons in their stonework. The crew of men carried with them one or more derricks, and material used in setting them up, which were set up as required, and taken down for transportation elsewhere when no longer needed at that particular place. This crew of masons and laborers were under the immediate supervision and control of a foreman, named Enger. He hired and discharged them as became necessary, told them where to work and what to do. Plans for the work were furnished to Enger by defendant's assistant engineeer of bridges, one Wood. It appears from the evidence that Wood directed, in a general way, the operations of this crew of men and of several other crews engaged in the same line of work for defendant, which was a foreign corporation, at other places, but he did not exercise special supervision unless on the ground. He was not present at the place where the accident occurred at any time after the crew went there, and gave no special directions concerning the work. It there became necessary to put up a derrick with which to handle stone, and Enger pointed out the place where the platform or scaffold should be built on which the derrick was to stand. There was also evidence tending to show that he gave directions as to just how the platform was to be built. This place was on the south side of the track, which was on top of quite an embankment, on the side of which the platform was to be built up, and brought to a level with the track, out of materials brought there for this purpose, — timbers of different lengths, about six or eight inches square. A trench was first dug near the bottom of the bank, parallel with the track, in which was laid one of these timbers. Short timbers were then rested on the bed piece, at right angles with it, and running into the bank, and then more pieces were placed parallel with the track. This manner of construction was carried on until the required height was reached, and on top, as a floor, were placed timbers

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about six by twelve inches in size. This structure was not bolted or fastened together in any way, and on top of it was placed the derrick, the foot of the mast resting on the flooring, and the top firmly fixed in position by the usual guy ropes. This platform was built and the derrick placed in so defective a manner that a tyro in mechanics should have known that, if a stone of sufficient weight suspended at the ends of the boom and stay arm was brought to a certain height directly across the track from the derrick, the pressure on the foot of the mast, outwardly from the embankment, would topple the platform over. The plaintiff had nothing to do with the building of the platform, was at work in another place, and testified that he did not know how it was built. When all was ready for operations, he was put at work turning the derrick crank with other men, all standing on the platform floor. The stones to be elevated and removed were on the north side of the track, and, on attempting to lift a heavy one, the pressure of the boom against the foot of the mast and away from the embankment caused the platform to collapse and the derrick to fall, plaintiff receiving the injuries complained of.

It cannot well be denied that the foundation for the derrick was constructed in a very negligent manner, and from an examination of the evidence we are convinced that Enger, the foreman, must be declared to have been a vice principal when it was built. We have stated his general duties as foreman of the stone crew and what was actually done by him in relation to the building of this particular platform. In addition to what has been said, it appeared from the evidence of Wood, the assistant engineer, whose office and residence were out of this state, that Enger had supreme control of the men and the work at all times when Wood himself was absent; that plans were furnished to him from the engineer's office for the work; but that, because of the varying conditions, no plans were ever furnished for putting up the derricks. They were to be erected where and in the manner directed by Enger. This was always left to his judgment, and the proofs were that in every instance he had control of the methods, and it was the duty of the men under him to put up the derricks and otherwise to work as he ordered. To put it concisely, it appeared from the evidence that defendant company had absolutely withdrawn all discretion from the men composing

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the crew as to where and how derricks should be erected, and had invested Enger with full power to devise the plans for the structure and complete control over the whole matter. The place, the plan, and the manner of putting up these appliances had been especially and unconditionally delegated to the foreman, and herein is one of the distinctions which may be made between this and the somewhat noted case of Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020, on which counsel for defendant mainly rely. Enger, the foreman, when directing where and how the platform was to be built, represented defendant company, became a vice principal; and it conclusively appeared that the company was responsible for his negligence. It follows from what has been said that the trial court was not in error when giving such portions of its charge as are made the basis for counsel's second, third, and fourth assignments.

Both parties introduced more or less testimony on the question of the sufficiency of materials furnished by defendant for constructing the derrick platform, plaintiff claiming that adequate materials were not furnished, and defendant insisting that there was an abundance. Because of...

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