Cook v. St. Paul, Minneapolis & Manitoba Ry. Co.

• Decision Date: 21 July 1885
• Parties: JOHN COOK, an Infant, by his Guardian <I>ad litem,</I> <I>vs.</I> ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY COMPANY.
• Court: Minnesota Supreme Court

Page 45

34 Minn. 45

JOHN COOK, an Infant, by his Guardian ad litem, vs. ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY COMPANY.

Supreme Court of Minnesota.

July 21, 1885.

Plaintiff, a boy of 19 years, was employed by defendant about its tracks in St. Paul, in spiking rails and shovelling. On the night of June 10, 1884, the Union Passenger Depot in that city was partially destroyed by fire. In the morning of June 11th, by order of one Brennan, the defendant's roadmaster, and of one King, the foreman of the gang in which plaintiff was working, the plaintiff was set to work at removing the ashes and debris in the depot. After plaintiff had worked on the first floor of the building for several hours, King directed him to go up-stairs, where three other men were working under direction of a foreman, who was not an employe of defendant, and who gave plaintiff a shovel and directed him to shovel ashes. About five minutes afterwards, and while plaintiff was thus engaged, the floor on which he was working gave way, and plaintiff sustained the injuries for which the action is brought.

At the trial in the district court for Ramsey county, before Brill, J., the plaintiff had a verdict. A new trial was refused, and the defendant appealed.

R. B. Galusha and J. Kling, for appellant.

Warren H. Mead and T. T. Alexander, for respondent.

BERRY, J.

The general duty of a master to exercise care to prevent the exposure of his servant to unnecessary and unreasonable risks requires him, among other things, to use reasonable diligence in seeing that the place where the service is to be performed is safe for that purpose. Noyes v. Smith, 28 Vt. 59; Hutchinson v. Railway Co., 5 Exch. 343; Gibson v. Pacific R. Co., 46 Mo. 163; Huddleston v. Lowell Machine Shop, 106 Mass. 282; Snow v. Housatonic R. Co., 8 Allen, 441; Sullivan v. India Mfg. Co., 113 Mass. 396; Ryan v. Fowler, 24 N. Y. 410; Patterson v. Pittsburg & C. R. Co., 76 Pa. St. 389; Swoboda v. Ward, 40 Mich. 420.

The master's duty and liability to his servant extend not only to such unnecessary and unreasonable risks as are in fact known to him, but to such as he ought to know in the exercise of proper diligence, i. e., diligence proportionate to the occasion. Hayden v. Smithville Mfg. Co., 29 Conn. 548; Noyes v. Smith, and Gibson v. Pacific R. Co., supra. The servant, of course, assumes the ordinary risks of his employment, such as are reasonably necessary and incidental to it, including negligence of fellow-servants; and, as a general rule, he also assumes such extraordinary risks as he may knowingly and voluntarily see fit to encounter. But while he may cut himself off from any recourse against his master if he recklessly rush into danger, he does not stand upon the same footing as his master as respects the matter of care in inspecting and investigating the risks to which he may be exposed. He has a right to presume that the master will do his duty in this respect, and therefore, when directed by proper authority to perform certain services, or to perform them in a certain place, he will ordinarily be justified in obeying orders, without being chargeable with contributory negligence or with the assumption of the risks of so doing. Russell v. Minn. & St. L. Ry. Co., 32 Minn. 230; Hutchinson v. Railway Co., and Gibson v. Pacific R. Co., supra. But this proposition is ordinarily subject to the qualification that he must not rashly or...