Carlson v. Northwestern Telephone Exchange Co.

• Citation: 63 Minn. 428
• Decision Date: 20 January 1896
• Docket Number: Nos. 9563-(129).,s. 9563-(129).
• Parties: SWAN CARLSON v. NORTHWESTERN TELEPHONE EXCHANGE COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Supreme Court of Minnesota (US)

Page 428

63 Minn. 428

SWAN CARLSON v. NORTHWESTERN TELEPHONE EXCHANGE COMPANY.¹

Nos. 9563-(129).

Supreme Court of Minnesota.

January 20, 1896.

Appeal by defendant from an order of the district court for Hennepin county, Hicks, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $1,500. Affirmed.

Hale, Morgan & Montgomery, for appellant.

F. D. Larrabee and Stiles & Stiles, for respondent.

START, C. J.

This is an action to recover damages for personal injuries sustained by the plaintiff by reason of the defendant's alleged negligence. Verdict for the plaintiff, and the defendant appealed from an order denying its motion for a new trial.

The case comes here upon a bill of exceptions, which does not purport to contain the evidence, but which does certify that upon the trial testimony was introduced tending to prove all of the allegations of the complaint and answer respectively. The bill of exceptions also contains a statement of certain facts which it certifies there was testimony to establish, if believed by the jury. From this statement, the allegations of the complaint, and the verdict, the following facts must be taken as established:

The plaintiff, on August 3, 1893, with some 80 other laborers employed by the defendant, a corporation, was engaged in the work of excavating a ditch along Nicollet avenue, in the city of Minneapolis, in which telephone wires were to be laid. The work of making this ditch was in the charge of a foreman of the name of Purvey, who had control of the work and of all of the men engaged thereon, with power to employ and discharge them, and to direct them what to do and where to work. He was the supreme authority there present, and all of the men were subject to his orders in every particular, and no one present had any authority over him. The plaintiff had been employed on the work for about three weeks before the accident, and was not assigned to any particular portion of the work. The soil through which the ditch was excavated consisted of sand, with a top layer, about a foot in depth, of tough, hard material, which had been filled in over the natural surface. The excavation had been made and the ditch completed along several blocks without any curbing or artificial support of its sides, until, on the day the plaintiff was injured, it reached the street-railway track, when it became necessary to increase its depth some three or four feet. At this point of the work, and on the morning of the day named, Purvey, the foreman, observed that a crack in the soil existed, extending from the ditch near the railway track 16 feet, describing a semicircle and ending near the ditch, the most distant part of the crack being 4 feet therefrom. Thereupon it became necessary, in order to prevent the side or wall of the ditch caving down, to put in curbing consisting of planks provided by the defendant, which were ample for that purpose. The work of putting the curbing in place was done by workmen other than the plaintiff, under the direction of the foreman. The curbing was in fact insufficient to hold the side of the ditch in place, and the complaint alleges that the walls and sides of the ditch were so negligently and defectively supported and braced that they were unsafe and dangerous, and a menace to the life and limb of the defendant's employés; and that the defendant knew, at the time the plaintiff was ordered, as hereinafter stated, to work in the ditch at this point, that such walls were unsafe, and were liable to cave in and injure persons there working.

The plaintiff, while the curbing was being constructed, was at work in another part of the ditch, and took no part therein, and had no knowledge of the crack in the soil at the point where the curbing was placed. When it was completed he was ordered by the foreman to go into the ditch where the curbing was placed, and clean out the loose sand at the bottom, and, ignorant of the true character of the curbing, and not knowing that the place was an unsafe one, he obeyed the order, and commenced the work as directed, when a piece of earth constituting the side of the ditch inside of the crack mentioned settled down by a sliding movement under the curbing into the bottom of the ditch, catching the plaintiff, and breaking his foot and ankle. The foreman did not caution or advise the plaintiff as to the unsafe condition of the ditch at the place he was ordered into, but the plaintiff saw the curbing, and knew that it was placed there to prevent the ditch from caving in.

There were no exceptions taken upon the trial of the action save those relating to the giving and refusing to give certain instructions to the jury by the trial court, and the assignments of error are limited to such exceptions.

1. The defendant's counsel, by their assignments of error 2 and 3, raise and discuss the question whether, upon the facts as they appear from the record, the plaintiff must be held to have assumed the risk of working in the ditch in the condition in which it was.

In performing the duties required of him, the plaintiff was bound to take notice of the ordinary operation of familiar natural laws and govern himself accordingly; and he must be held to have assumed the risk of such defects and dangers in the place assigned to him in which to work as were open and obvious, and must have been known and appreciated by him. Smith v. Tromanhauser, supra, p. 98, 65 N. W. 144. But the defendant's special requests for instructions to the jury upon which its assignments of error 2 and 3 are predicated were properly refused, for the reason that they assume as a matter of law that the defects and dangers of the place into which the plaintiff was ordered were obvious, and therefore presumed to have been known, appreciated, and assumed by him. Error cannot be presumed, and, in the absence of the evidence from the record, it must be assumed that the question whether the dangers and defects were obvious was, under the evidence, a question of fact for the jury. It was clearly so if, as the record states, the evidence tended to establish the allegations of the complaint and the facts recited in the bill of exceptions.

2. Assignments of error 1, 4, 5, 6, 9, and 10 present the question whether the foreman, Purvey, in ordering the plaintiff into that part of the ditch where the curbing was placed, acted as the representative of the defendant, and in its place, or as a fellow servant of the plaintiff.

The trial court instructed the jury that in the work of excavating and constructing the ditch, including the curbing, the foreman was the fellow servant of the plaintiff, and that the defendant was not liable for any neglect of the foreman in this respect. But the jury were further instructed that it was the duty of the defendant to use ordinary care to protect the plaintiff from unusual risk, and that whatever the foreman did or failed to do in this respect was the act or omission of the defendant, and, if he failed to exercise such care, his negligence in the premises was that of the defendant; that unless the foreman knew there was unusual danger to the plaintiff in working in the place assigned him, — something which would not occur in the ordinary course of digging ditches, — the plaintiff could not recover; but, if the foreman did know, when he ordered the plaintiff into the ditch, that its walls were unsafe, dangerous, and liable to cave in and injure the plaintiff, and did not warn him, the defendant would be liable. These instructions were substantially repeated one or more times, and the defendant's exceptions thereto were in these words: "We except to those portions of the charge hereinafter stated separately, that is to say, to that portion which, in effect, stated that the master was bound to use ordinary care and diligence to protect the servant from unnecessary risks, and that Purvey was vice principal for that purpose. It is that feature there, making him vice principal." Also that, "if Purvey knew of unusual danger, and did not warn the plaintiff, defendant is liable. I want to get at the same purpose, — that Purvey was vice principal."

The defendant's first contention is that the court erred in giving the instructions, because the record fails to show that the foreman knew of the unsafe condition of the ditch, or that the order to work in the ditch at the point where the accident occurred was the proximate cause of the plaintiff's injury. If it be true that the evidence on the trial did not establish these facts, the question cannot be here reviewed, for two reasons: The record does not contain the evidence, and the exceptions do not raise any question as to the sufficiency of the evidence. It is manifest on the face of the exceptions that they were intended to and did raise only the question as to the correctness of the instruction that the foreman in giving the order was acting as a vice principal. That it was not correct in this particular is the defendant's second and principal contention.

This brings us to the important, and practically the only real, question presented by the record for our decision, viz.: Was the foreman discharging a duty which rested upon the defendant as master, when, under the particular circumstances and conditions of this case, he ordered the plaintiff into the ditch at the point where the accident occurred? If he was, the instructions of the court excepted to were correct; if he was not, the giving of them was reversible error. We answer the question in the affirmative.

The authorities upon the question when and under what circumstances an employé becomes, as to his fellow servants in a common employment, the representative of the master, are involved in a bewildering maze of inconsistency and injustice. In the case of Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020, this court had the question under consideration, and as a result of a review of its previous decisions, and upon principle,...