Clark v. St. Paul & Sioux City Railroad Company
| Decision Date | 08 July 1881 |
| Citation | 9 N.W. 581,28 Minn. 128 |
| Parties | Mary A. Clark, Administratrix, v. St. Paul & Sioux City Railroad Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Scott county, Macdonald, J., presiding, refusing a new trial.
Order denying the defendant's motion is reversed, and a new trial granted.
E. C Palmer, for appellant.
O'Brien & Wilson, for respondent.
The plaintiff brought this action, as the legal representative of James S. Clark, deceased, against the railroad company defendant, for damages for negligently, and in violation of its duty, subjecting her intestate to the peril of being struck by a roof or awning projecting over its side-track from contact with which he met his death, while engaged in the service of the company. The plaintiff had a verdict which the defendant claims is erroneous for two principal reasons -- First, the absence of any negligence or omission of duty causing the injury on the part of the defendant; and, second, contributory negligence, or the voluntary assumption of the risk of the peril from which the injury happened, on the part of the deceased. The evidence is all before us.
1. In the contract of employment in a dangerous occupation, like that of operating a railroad, there is an implied obligation in law resting on the employer or master, which requires him to use due care in supplying and maintaining the instrumentalities for the performance of the work which he requires of his servants, and renders him liable for injuries occasioned by neglect or omission to fulfil this obligation. Drymala v. Thompson, 26 Minn. 40, 1 N.W. 255.
The verdict for the plaintiff involves a finding by the jury that the defendant violated its obligations or duty to the plaintiff's intestate, by suffering the elevator roof or awning to be constructed and maintained in the position in which it was, with reference to the side-track, upon which it was a part of the duty of the deceased, as a switchman or brakeman, to assist in moving freight cars. The roof or awning was built out from the side of an elevator at Shakopee, on the line of the defendant's railroad, and projected over a side-track, upon which freight cars were accustomed to be moved, in such a position, and with such a downward pitch or inclination, that its lowest projection would strike a man of ordinary height, standing erect upon the centre of the roof of an ordinary freight car moving under it, in the head, while it would not come in contact with a man standing eight inches or a foot aside from the centre of the car. Its object was to protect grain from the weather while loading from the elevator into the cars, and it projected a little beyond the centre of the cars, so as to shed rain upon the roof, and so over them. It had been maintained in this position for eight years or more at the time of the accident. The duties of a brakeman, while engaged in moving cars, require him to pass over them, and a board about fifteen inches in width, called the "running-board," is placed along the centre of the roof, to facilitate such passage, the roof of the cars being constructed with a slight pitch, and therefore difficult to pass or stand upon when wet or slippery. The plaintiff's intestate was struck by the projecting corner of the awning, while engaged in the line of his duty in moving freight cars upon the side-track. He could only have been struck while standing erect on the running board. If he had stood down upon the roof of the car, or stooped, he would have escaped. The evidence does not disclose any necessity for the construction and maintenance of the awning in such a dangerous position. Upon this state of facts, the jury...
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