Dushaw v. Great Northern Railway Co.
| Decision Date | 23 November 1923 |
| Docket Number | 23,480 |
| Citation | 195 N.W. 893,157 Minn. 171 |
| Parties | CHARLES DUSHAW v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Stearns county to recover $50,000 for personal injuries. The case was tried before Roeser, J who at the close of the testimony denied defendant's motion for a directed verdict, and a jury which returned a verdict for $10,500. From an order denying its motion for judgment notwithstanding the verdict or for a new trial defendant appealed. Affirmed.
Scaffold in defendant's car shop unsafe.
1. The evidence warranted the jury in finding that a scaffold provided by defendant for the use of its employes while remodeling a car in its shops was not safe.
Proof of causal connection with injury need not be by direct evidence.
2. The evidence would warrant an inference by the jury that plaintiff was on the scaffold when he fell and that its unsafe condition was a proximate cause of his injury. Plaintiff had the burden of establishing causal connection between the negligence alleged and the injury suffered, but was not required to establish it by direct evidence.
Assumption of risk by plaintiff question for jury.
3. Whether plaintiff assumed the risk incident to the use of the scaffold was a question for the determination of the jury. He had the right to act on the assumption that defendant would see that the scaffold was kept safe for use to the extent of discovering and remedying an unsafe condition, if it arose after the scaffold was constructed and would not be obvious to those who used it.
F. G. Dorety and A. L. Janes, for appellant.
Donohue & Quigley, for respondent.
This is an action for damages for personal injuries sustained by plaintiff while employed by defendant as a car repairer in its St. Cloud shops. The jury returned a verdict in plaintiff's favor and defendant has appealed from an order denying its motion in the alternative for judgment or a new trial.
On December 15, 1921, one of defendant's baggage cars was placed in the shops to be remodeled. Work on the car began on December 21. Plaintiff, a car carpenter with 9 years experience, worked on the car until January 17, 1922, when he was injured.
To enable the men to do their work, a scaffold was built on either side of the car. It was constructed by plaintiff and two other car carpenters, one of whom acted as foreman. The scaffold on the north side of the car is the one involved. It consisted of A-shaped ladders set alongside the car, with planks laid on the top round of the ladders. The ladders were 9 feet high and the edge of the roof of the car was about 3 feet higher. To raise the scaffold at the west end of the car, blocks of wood were placed on the planks where they rested on the ladders and another plank 12 or 14 feet long was laid on the blocks. The blocks were 6 inches thick, and this brought the plank they supported above the tops of the side pieces of the ladders. The plank was not nailed to the blocks and they were not nailed to anything beneath them. One of the blocks was set diagonally between the side pieces of the ladder because it was too long to go between them. At one end of the topmost plank a piece 2 feet long and 4 inches wide had been cut out. This end of the plank was either on or extended over the long block and the block was on the west ladder. The ladders were braced to keep them from slipping. The brace on the west ladder was a piece of siding 7 or 8 feet long, with one end nailed to a post. The men stood on the scaffold while at work and also used it to get upon or descend from the roof of the car when work was to be done there. There was an ordinary ladder at one end of the car, which they also used to get on or off the car.
The accident happened between 9 and 10 o'clock in the forenoon. No one saw plaintiff on the scaffold that morning, but he was seen on the roof of the car by several witnesses. A tinner, engaged in soldering the seams in the roofing, stood on a plank 5 or 6 feet east of the one supported by the blocks of wood. Feeling a vibration in the scaffold, he looked to the west and saw plaintiff falling between the scaffold and the car. He was half way to the floor and was falling with his feet foremost and his back toward the car. The long block was also falling and struck the floor about 2 feet east of him. The plank which had rested on the blocks also fell, the west end striking the floor beside the plaintiff while the other end remained on the ladder. After the accident it was discovered that the brace attached to the west ladder was torn from the post and the ladder tipped away from the car. The space between the scaffold and the side of the car was about 18 inches. The roof of the car was round, had been covered with tin the day before the accident, and was slippery.
Plaintiff was placed on the witness stand and the attorneys for both parties attempted to obtain his testimony, but without success. It seems that since the accident he has been unable to understand or answer ordinary questions put to him, and we are therefore asked to indulge in the same presumption as in death cases, viz., that he exercised due care to avoid injury.
The court denied defendant's motion for a directed verdict, made at the close of the evidence, refused to instruct the jury that there was no evidence which would justify them in finding that plaintiff was on the scaffold at the time he fell, and submitted these issues for their determination: Whether defendant was negligent in furnishing and maintaining the scaffold in question; whether the alleged negligence was the proximate cause of plaintiff's injury; whether he assumed the risk incident to the use of the scaffold, and whether he himself had been negligent, with proper instructions as to the measure of damages if he had.
On this appeal, three questions are raised by defendant:
1. The first is whether there was sufficient evidence to warrant the jury in finding that the scaffold was not safe for use. It is familiar law that a master is bound to exercise reasonable care to furnish his servants with a reasonably safe place for doing their work and that his duty in this regard is absolute and continuous. 2 Dunnell, Minn. Dig. §§ 5869, 5870, 5871.
Section 3874, G.S. 1913, contains the following language:
"Whenever practicable, all scaffolds * * * constructed * * * for the use in erection, repairing [or] alteration * * * of any * * * structure, shall be erected and constructed in a safe, suitable and proper manner [so] * * * as to give proper and adequate protection to * * * any person * * * employed or engaged thereon."
As to scaffolds, the statute abolished the fellow servant doctrine of the law of negligence. Block v. Minnesota F.B. & T Co. 128 Minn. 71, 149 N.W. 954. But that aside, as a common carrier owning and operating a steam railroad, defendant was...
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