Cook v. St. Paul, M. & M. Ry. Co.

• Decision Date: 21 July 1885
• Citation: 24 N.W. 311,34 Minn. 45
• Court: Minnesota Supreme Court
• Parties: COOK, AN INFANT, BY HIS GUARDIAN AD LITEM, v ST. PAUL, M. & M. RY. CO

34 Minn. 45

24 N.W. 311

COOK, AN INFANT, BY HIS GUARDIAN AD LITEM,vST. PAUL, M. & M. RY. CO

Supreme Court of Minnesota.

Filed July 21, 1885.

Appeal from an order of the district court, Ramsey county, denying motion for new trial, etc.

W. H. Mead and T. T. Alexander, for respondent, John Cook, an infant, etc.

R. B. Galusha and J. Kling, for appellant, St. Paul, M. & M. Ry. Co.

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. 852; Gibson v. Pacific R. Co. 46 Mo. 163;Huddleston v. Lowell Mach. Shop, 106 Mass. 282;Snow v. Housatonic R. Co. 8 Allen, 446;Sullivan v. India Manuf'g 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. Smithfield Manuf'g 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. Minneapolis & St. L. R. Co. 32 Minn. 230;S. C. 20 N. W. REP. 147; Hutchinson v. Railway Co. and Gibson v. Railway Co., supra. But this proposition is ordinarily subject to the qualification that he must not rashly or deliberately expose himself to unnecessary and unreasonable risks which he knows and appreciates. And here it is important to note a distinction well elucidated in Russell v. Minneapolis & St. L. Ry. Co., supra, viz., that it is one thing to be aware of defects in the instrumentalities or plan furnished by the master for the performance of his services, and another thing...