Froelich v. Northern Pacific Railway Co.

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

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

Action dismissed.

BRONSON J., dissenting.

OPINION

PER CURIAM.

A rehearing was ordered in this case. After full argument and reconsideration of all questions involved, we are satisfied that the result reached in the former opinion is right. Certain features of the case--tending to support the conclusions formerly reached--were even more clearly brought forth on the reargument, and we deem it desirable to supplement the former opinion by a reference to those features of the case. The plaintiff was a night box packer, employed in defendant's roundhouse at Mandan. The general roundhouse foreman was Joseph Zuber. He was in general charge both night and day, but during the night there was a subordinate or night foreman. The night foreman was named Vickers. Plaintiff testified that about a month before the accident he asked Vickers for a tool box. That about a week before the accident plaintiff asked Vickers about the matter, and that Vickers stated he couldn't get a tool box for him, and said to the plaintiff: "When you get time make it yourself." On the night the accident occurred Vickers was off duty, and one Cantwell was acting as night foreman. It is undisputed that the plaintiff said absolutely nothing to Cantwell about either wanting a tool box, or intending to make one, or wanting to use the saw for any purpose. The undisputed testimony shows that Cantwell had absolutely no knowledge that plaintiff intended to use the saw, and that the first knowledge he had that plaintiff would do so was after the accident had occurred. As stated in the former opinion there was posted near the saw a large sign reading, "This saw is to be used by carmen only." The evidence showed and the jury found (in answer to special interrogatories) that at the time of the injury there was an existing rule "to the effect that none but carmen should use the saw in question," but that this rule was not followed by employees or enforced by the defendant. The jury further found (in such special interrogatories) that the plaintiff in the exercise of reasonable care should have known of such rule; and that an ordinarily prudent man in the exercise of reasonable care and the use of his eyesight should have noticed and obeyed the sign which stood on the wall near the saw, if the rules had been enforced.

The roundhouse foreman, Zuber, testified: "There were instructions that no employee in my department was to go into the car shops without my permission." He also testified: "In 1915, about February, 1915, . . . one of the men in the car shops had sawed his finger, . . . and we have what is called a 'Careful Club' or bureau of information, and the idea of this is to educate all of our employees to be careful not to do anything that is liable to cause an injury or to injure anyone else. I, as well as the other foreman, was ordered by our superior officers to call all of our employees into the office and go over all of the injuries or accidents that had happened that we knew of, especially in our own departments, and to call the men's attention to the various instructions that had been put out, and I called them all into my office on the 10th day of February, all the machinists and their helpers and box packers. Among other things, I told them about this man going down and using this saw, and he had no business to use it. I said, 'There is a man that took a chance and got hurt. The railroad company has spent thousands of dollars trying to teach you boys to stop doing those things.' I instructed them that I did not want any man in my department to go near the saw, and that if I knew of any man going near that saw I would discharge him from the service." Zuber further testifies that the plaintiff, Froelich, was present at the time those instructions were given. Zuber's testimony to the effect that the instructions were given, and that the plaintiff was present, is corroborated by other witnesses, and is not contradicted by anyone. And while the plaintiff was recalled after this testimony was given, he did not in any manner deny that he was present at the time such instructions were given. And there is absolutely no evidence tending to show that the foreman, Zuber, had any knowledge or information that the plaintiff or any of the other employees were violating the instructions. Nor is there any evidence tending to show any violation of the order during the daytime. But it is contended that the order was disregarded at night; that the night foreman had knowledge of such violations, and that the jury was justified in finding that the order had been waived.

It is true plaintiff testified that he had used the saw. But he does not claim nor is there any evidence tending to show that he ever used it in the presence of anyone. Nor is there any evidence showing that the night foreman had any actual knowledge of plaintiff's violation of the order, and the positive testimony of both Vickers and Cantwell is to the effect that neither of them knew or had been informed of such violations. It is true, the evidence does show that upon two occasions Vickers sent the plaintiff to the carpenter shop for certain boards, but the uncontradicted testimony showed that it was customary for the carpenter to leave boards sawed into proper lengths for the various purposes for which boards would ordinarily be needed during the night-time, and that if any extraordinary occasion occurred the carpenter could be called at any time during the night. In fact the plaintiff testified that on the night the accident occurred "there was quite a lot (of sawed boards) laying there besides the saw."

The only order which plaintiff claimed to have received with respect to making a tool box was about a week before, when, he claims, Vickers said: "When you get time make it yourself." Vickers denied this conversation, and testified that a tool box was not necessary, and that the tools might, and frequently were, carried in the dope pail. The undisputed testimony also showed that the carpenter--Larson--during the daytime would saw any boards that were requested for the use of the night men, and the plaintiff could have had Larson saw whatever boards that might have been needed for the tool box. Clearly there is no evidence from which reasonable men could find that defendant either knew or should have known that plaintiff or others violated the order relating to the use of the saw, so that it may be said that defendant acquiesced in such violation and waived the order. Nor is there any evidence from which reasonable men could find that the night foreman ordered plaintiff to use the saw in making a tool box. In our opinion the evidence upon this feature of the case warrants but one conclusion,--that the plaintiff was injured while, and as a result of, willfully violating a reasonable and lawful order promulgated by the defendant for the safety of its employees. He disregarded the order, and sought to do that which he had been expressly forbidden. His own act, and not the act of the defendant, was the cause of his injuries. Great Northern R. Co. v. Wiles, 240 U.S. 444, 60 L.Ed. 732, 36 S.Ct. 406. See also 18 R. C. L. 498; Labatt, Mast. & S. § 273.

Nor do we believe that there is any evidence to support a finding that the defendant was guilty of negligence with respect to the saw itself. The evidence shows that a guard was provided for the saw in the summer of 1915. Larson, the carpenter, had used the saw for something like eighteen years before that without any safety device. It is said Larson used the saw without using the guard.

His testimony is:

Q. You did not always use that guard?

A. Not in the beginning, because I forgot once in a while because I used the saw so much without it before it was put there, but lately I don't use it without using the guard.

The guard was right at hand, over the saw. In order to use the guard, all that was necessary to do was "just to pull it right down over the saw, and it is supposed to be right on the board when you are sawing." Larson testified that the guard was in good condition. Villaume, superintendent of a box factory where some thirty similar saws are in operation, testified that the guard was a good one, and that he did not know of a better one. The undisputed testimony is to the effect that plaintiff could not possibly have been injured if he had used the guard.

The plaintiff said he had never used any other buzz saw. All his knowledge of buzz saws was gained from the saw in question. The same is true of the only other witness who testified for the plaintiff on this point. Neither of them could, nor did they pretend to, testify that the saw was not installed in the usual manner. On the other hand the positive testimony on the part of defendant's witnesses was to the effect that both saw and guard were properly installed in the usual manner, and were both in the best of condition. The plaintiff gave as his reason for not using the guard that Larson had said it was "unhandy," and "not good." There is no contention that Larson was instructing the plaintiff in the use of the saw, and the undisputed testimony is to the effect that Larson never knew that plaintiff used it, and plaintiff admitted that he had never seen Larson operate the saw since he (plaintiff) became a night box packer. Of course most safety devices may be said to be unhandy, and most safety regulations may at times be irksome. It probably required more time and effort to use the guard than to operate the saw without it, just as it takes longer time to travel a given distance and obey speed regulations than by exceeding them.

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