Froelich v. Northern Pacific Railway Co.

• Citation: 173 N.W. 822,42 N.D. 550
• Decision Date: 30 November 1918
• Court: United States State Supreme Court of North Dakota

173 N.W. 822

42 N.D. 550

MATT FROELICH, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of North Dakota

November 30, 1918

Rehearing filed July 22, 1919.

Appeal from the District Court of Morton County, Honorable J. M Hanley, Judge.

Reversed and dismissed.

Judgment reversed and action dismissed.

Watson Young, & Conmy, for appellant.

Negligence is never presumed, but is an affirmative fact, and the burden of proving it is on the plaintiff in order to make out a case. Manson v. G. N. R. Co. 31 N.D. 647; Adams v. Paper Co. 143 N.W. 658; Patton v. Texas & P. R. Co. 179 U.S. 658; Pioneer Const. Co. v. Sandberg, 98 Ill.App. 36; Ryan v. McCully (Mo.) 27 S.W. 533; Goldstein v. People's R. Co. (Del.) 60 A. 975; Duntley v. Inman Poulson Co. 70 P. 529; C. & N.W. R. Co. v. O'Brien, 132 F. 593; Sandrew v. R. Co. 142 F. 320; Mexican C. R. Co. v. Townsend, 114 F. 737; Butler v. Frazee, 25 App. D. C. 392; N. P. R. Co. v. Dixon, 139 F. 737; Greeley v. Foster (Colo.) 75 P. 351; Sappenfield v. Park R. Co. (Cal.) 27 P. 590; Chicago Teleph. Co. v. Schulz, 121 Ill.App. 573; Brownsfield v. R. Co. (Iowa) 77 N.W. 1038; Dana & Co. v. Blackburn (Ky.) 90 S.W. 237; Lane v. Missouri P. R. Co. (Kan.) 69 P. 626; Vissinaw v. R. Co. (Ky.) 89 S.W. 502; So. Bolt Car Works v. Schaefer (Md.) 53 A. 665; Wormell v. Maine C. R. Co. (Me.) 10 A. 49; Robinson v. Wright & Co. (Mich.) 53 N.W. 938; St. Louis R. Co. v. Hill (Ark.) 94 S.W. 914; Huff v. Austin (Ohio) 21 N.E. 864; Neeley v. Cotton Seed Oil Co. (Okla.) 75 P. 537; Duntley v. Inman P. & Co. (Ore.) 70 P. 529; Higgins v. Fanning (Pa.) 46 A. 102; Green v. Power Co. (S. C.) 55 S.E. 125; Ry. Co. v. Lindamood (Tenn.) 78 S.W. 99; Moose Line Co. v. Johnston (Va.) 48 S.E. 557; Mo. K. & T. R. Co. v. Crowder (Tex.) 55 S.W. 380; Katerman v. Dry Fork R. Co. (W. Va.) 37 S.E. 683.

"There is no negligence shown where it appears that the machinery was such as is in common and general use." Omaha Bottling Works v. Theiler (Neb.) 80 N.W. 821; Higgins v. Fanning (Pa.) 46 A. 102; Fritz v. Electric Co. (Utah) 56 P. 90; Poneybelisk v. Coal Co. (Wis.) 74 N.W. 117; Manley v. Mpls. Paint Co. (Minn.) 78 N.W. 1050; Weeds v. Ry. Co. (Neb.) 99 N.W. 827; Law v. Central Dist. Printing & Tel. Co. 140 F. 558; Wash. Asphalt Block & Tile Co. v. Mackey, 15 App. D. C. 410.

A master owes his servant the duty of providing his machinery with the same kind of appliances or appliances equally safe, as those in general use by man of ordinary prudence in the same kind of business. Boyle v. U. P. R. Co. 25 Utah 420, 71 P. 988; Chrismer v. Bell Teleph. Co. (Mo.) 92 S.W. 378; Shadford v. Ann Arbor St. R. Co. (Mich.) 69 N.W. 661; Richards v. Rough (Mich.) 18 N.W. 785; Briggs v. C. & N.W. R. Co. 125 F. 745; Titus v. Bradford Co. 20 A. 517; Rogers v. L. & N. R. Co. 88 F. 462; N. P. R. Co. v. Blake, 63 F. 45; Roberts v. Mill Co. (Wash.) 70 P. 111; Kehler v. Schwank (Pa.) 22 A. 910; Brock v. Witherbee, 98 N.Y. 562; Corbett v. School (N.Y.) 68 N.E. 997; Tomkins v. Machine Co. (N. J.) 58 A. 393; Demers v. Marshall (Mass.) 59 N.E. 454; C. & G. R. Co. v. Armstrong, 62 Ill.App. 228; Wabash Screen Door Col. v. Black, 126 F. 721; Westinghouse Co. v. Heimlich, 127 F. 92; Chrismer v. Bell Teleph. Co. 6 L.R.A.(N.S.) 492; Manson v. G. N. R. Co. 31 N.D. 643; Balding v. Andrews & Gage Elev. Co. 12 N.D. 267, 96 N.W. 305; Meehan v. G. N. R. Co. 13 N.D. 432, 101 N.W. 183; Scherer v. Schlaberg (N.D.) 122 N.W. 1000.

Plaintiff must show a defect creating a dangerous situation, and also that defendant had knowledge of such defect and the danger created thereby. Tolland v. Paine Fur Co. (Mass.) 56 N.E. 608; Duntley v. Inman Poulson & Co. 70 P. 529; Marquard v. Ball Engine Co. 122 F. 374; Mast. & S. Dec. Dig. § 125; Patton v. Texas & P. R. Co. 179 U.S. 658, 660, 664.

Knowledge of the defect or some omission of duty in regard to it must be shown. Looney v. Met. R. Co. 200 U.S. 486; Sappenfield v. Park R. Co. (Cal.) 27 P. 590; Brownfield v. R. Co. (Iowa) 77 N.W. 1038; Black v. Fair Asso. (N.D.) 164 N.W. 297; Meehan v. G. N. R. Co. 13 N.D. 432, 101 N.W. 183; Manson v. G. N. R. Co. 31 N.D. 643; Chybouski v. Bucyrus Co. (Wis.) 106 N.W. 833.

Where evidence shows it is just as probable accident happened by causes other than negligence of defendant, there can be no recovery. Patton v. Texas & P. R. Co. 179 U.S. 658, 660, 664; Boston v. Buffrom (Me.) 54 A. 392; Chesapeake & O. R. Co. v. Heath (Va.) 48 S.E. 508; Strasburger v. Vogel (Md.) 63 A. 202; Cerrilles Coal R. Co. v. Deserant (N. M.) 49 P. 807.

"Where the plaintiff knew the danger incident to the use of a dangerous machine without the safety device, even though there were no rules forbidding the use of same, he took his own chances in using same." Egnor v. Lumber Co. 92 N.W. 245; Purkey v. Coal Co. 50 S.E. 753; Lamotte v. Boyce (Mich.) 63 N.W. 517; W. & R. R. Co. v. McDade, 135 U.S. 554; Seaboard Air Line v. Horton, 233 U.S. 492; Jacobs v. So. R. Co. 241 U.S. 229; Manson v. G. N. R. Co. 31 N.D. 643; Pingree v. Leyland, 135 Mass. 398.

There can be no recovery in this action, neither the plaintiff nor the defendant being engaged in interstate commerce at the time of the injury. I. C. R. Co. v. Kelly, 167 Ky. 745, 181 S.W. 375; C. N. O. & T. P. R. Co. v. Tucker, 168 Ky. 149, 181 S.W. 940; Chesapeake & O. R. Co. v. Shaw, 182 S.W. 657.

It is prejudicial error to permit the jury to pass upon the question as to whether the defendants were negligent in any particular as charged in the complaint. Strange v. Lumber Co. 116 Am. St. Rep. 92, 96 S.W. 152; Walrod v. Webster County, 47 L.R.A. 480, 81 N.W. 598; Illinois C. R. Co. v. King, 70 Am. St. Rep. 93, 55 N.E. 552.

Jacobsen & Murray, for respondent.

The master owes the servant certain nondelegable duties, among which are reasonably safe instrumentalities and a safe place to work and to proper instructions. 26 Cyc. 1097, 1104, 1185; United v. Colgate Elev. Co. 18 N.D. 320; Sword v. McDonnell, 31 N.D. 494.

If the evidence shows there is no liability under the Federal act, as soon as that fact appears the defendant may then file a petition for removal, if entitled to it, if there be a diversity of citizenship. Thornton, Fed. Employers' Liability Act, 3d ed. § 193, p. 731; Strother v. Union P. R. Co. 22 F. 731; Powers v. Chesapeake & O. R. Co. 169 U.S. 91, 42 L.Ed. 673.

When the action is brought under the Federal statute, and allegations are used which are sufficient to bring the action on a state statute or at common law, and the proof under the Federal statute fails, the plaintiff may go to the jury on the state statute or common law as his proof may show. Corbett v. Boston & M. R. Co. (Mass.) 107 N.E. 60; Thornton, Fed. Employers' Liability Act, 3d ed. § 212, pp. 313, 314; S. R. Co. v. Ainsley, 8 Ga.App. 325, 68 S.E. 1086; Winfree v. N. P. R. Co. 227 U.S. 96, 33 S.C. 273, 57 L.Ed. 518, 173 F. 65.

ROBINSON, J. CHRISTIANSON, Ch. J., and BRUCE, J., concur, BIRDZELL, J., concurring in the result. GRACE, J., dissenting.

OPINION

ROBINSON, J.

This is a personal injury suit in which the plaintiff recovered a verdict and judgment for $ 5,000 for a sad accident by which he lost four fingers from the left hand. Defendant moved for a directed verdict, for judgment notwithstanding the verdict, or, in the alternative, for a new trial, and appeals from an order denying the same.

Since January, 1910, at Mandan, plaintiff was in the employ of defendant as a roundhouse workman for some two years. He was helping at boiler making; then for three years he was employed as an engine box packer--a night workman--in the roundhouse, and that was his business at the time of the injury. His business was to pack and oil engine boxes and to change brasses. The packing is replacing "dope" or old grease in the cylinders, drive boxes or journals, so there may be no friction. The packing keeps them lubricated and oiled. As it appears from plaintiff's testimony, he thought that in his business it would be well to have a tool box to carry his tools and to sit on when working under an engine, and he concluded to make one himself. Accordingly, toward the approach of a May morning, plaintiff went from the roundhouse to the farthest corner of the car shop and there turned on the lights and started up the machine. He says: "I looked for a board and found it. When I put on the switch the machine started to run right away. It run like lightning; the saw was in gear and I took the board and put it in there--when I had it about half way through all at once it started and jerked and wabbled, and the first thing I noticed the board was gone through my hands and I looked at my hand and the four fingers were gone." He says the board he started to rip was 12 x 30 inches, and at the time of the accident it was ripped about half through.

Joseph Zuger, the roundhouse foreman, testified that he heard of the accident and went to the car shop early in the morning. He examined the board that plaintiff had been sawing; it was a piece of car roofing 5 or 6 inches wide and 7 or 8 feet long; it was laying in the saw and ripped about halfway through and spots of blood all over it. If that is true, the board was more suitable for kindling wood than for the making of a tool box.

The action is brought under the Federal Employers' Liability Act, which is, in effect, the same as chap. 207, Laws 1915. Under the act a common carrier by railroad, while engaged in interstate commerce, is liable in damages to any person suffering injury while he is employed by such carrier in such commerce. It is liable for such injury or death, resulting in whole or in part from the negligence of any of the officers agent, or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its...