Fraser v. Red River Lumber Co.

• Decision Date: 13 January 1891
• Citation: 45 Minn. 235,47 N.W. 785
• Parties: FRASER v RED RIVER LUMBER CO.
• Court: Minnesota Supreme Court

45 Minn. 235

47 N.W. 785

FRASERvRED RIVER LUMBER CO.

Supreme Court of Minnesota.

Jan. 13, 1891.

(Syllabus by the Court.)

The defendant, a manufacturer of lumber, had a mill, in which the lumber was sawed, and from which it was taken and piled in an adjoining yard. It employed in this yard a crew of men, part of whom were engaged in piling the lumber, while others were engaged in measuring, sorting, and scaling it. The plaintiff, who was one of this crew, was engaged in assorting and scaling, and had nothing to do with the piling. In accordance with the usual custom in piling lumber, boards were projected from the piles at certain intervals as steps on which to ascend and descend. The lumber contained sufficient sound and suitable boards for steps, and the men employed as pilers were competent men to perform that work. In making one of these piles, the pilers negligently projected as a step, an unsound and unsafe board, and consequently the plaintiff, while ascending the pile in the line of his duty, stepped on this board, which broke, causing him to fall, whereby he sustained personal injuries. Held, that the plaintiff and those who piled the lumber were fellow-servants, and therefore defendant was not liable.

Appeal from district court, Polk county; MILLS, Judge.

Wilson & Van Derlip, for appellant.

Wm. Watts, for respondent.

MITCHELL, J.

The defendant was engaged in the manufacture of lumber. It had a mill in which the lumber was sawed, and from which it was taken and piled in an adjoining yard. During the sawing season it employed in this yard a crew of from 40 to 60 men, a part of whom were engaged in piling the green lumber, while others were engaged in measuring, sorting, scaling, and delivering dry lumber. The plaintiff belonged to this crew, but his particular duties were assorting and scaling, and he had nothing to do with the piling. His duties took him constantly about the yard, and made him familiar with defendant's manner of doing business, and with the workmen employed there. The lumber was piled in accordance with the usual custom in such yards. At certain intervals, boards were projected from the piles for steps on which to ascend and descend. It is not claimed that the defendant was negligent in the general method of conducting its business, and no question is made, but that the employes who piled the lumber were perfectly competent to perform the duties in which they were engaged. It is also admitted that the lumber contained sufficient sound and suitable boards, out of which to make safe steps. In making one of these piles, the pilers, negligently, as the evidence tended to prove, projected, as a step, a knotty and unsafe board, and subsequently, while plaintiff, in the line of his duty as measurer and scaler, was ascending the pile and stepped on this board, it broke and he fell, receiving the injuries complained of. It is not pretended that the defendant knew of the defective character of the board. The contention of the plaintiff is that, under the familiar rule that it is the primary duty of the master to exercise ordinary care to furnish his servants with safe instrumentalities and places with which, and in which, to work, the men who piled the lumber, and projected boards for steps for the scalers and measurers to ascend and descend, were performing the master's duty, and hence that defendant is...