Gillespie v. Great Northern Railway Co.

• Decision Date: 12 December 1913
• Docket Number: 18,238 - (111)
• Parties: GEORGE S. GILLESPIE v. GREAT NORTHERN RAILWAY COMPANY
• Court: Minnesota Supreme Court

144 N.W. 466

124 Minn. 1

GEORGE S. GILLESPIE v. GREAT NORTHERN RAILWAY COMPANY

Nos. 18,238 - (111)

Supreme Court of Minnesota

December 12, 1913

Action in the district court for St. Louis county to recover $20,000 for personal injury received while in the employ of defendant. The answer denied that plaintiff sustained any injury whatever by reason of any negligence on the part of defendant, and alleged that plaintiff claimed his injury was caused by the negligence of another party or parties, and upon information and belief it alleged that plaintiff demanded compensation for the injuries from another, and thereafter for a valuable consideration to him in hand paid plaintiff compromised and adjusted all claims for damages on account of the injuries. The case was tried before Dibell J., who denied defendant's motion for a directed verdict and a jury which returned a verdict of $11,375 in favor of plaintiff. Defendant's motion for judgment notwithstanding the verdict was denied and its motion for a new trial was granted, unless plaintiff consented to a reduction of the verdict to $9,000, which consent was given. From the order denying its motion for judgment notwithstanding the verdict and granting its motion for a new trial unless plaintiff consented to a reduction of the verdict, defendant appealed. Affirmed.

SYLLABUS

Notice of use of explosives.

1. Evidence held sufficient to sustain a finding charging defendant railroad company with notice of excavating operations being conducted on and near its right of way by another company, through a subcontractor, and also of the manner in which the work was being done, including the use of dynamite, so as to impose upon defendant the duty of warning plaintiff, its employee, before putting him at work on a semaphore pole located dangerously near the place where the blasting was going on.

Verdict -- evidence.

2. Jury held justified in finding that plaintiff's injury from a blast followed in natural sequence from defendant's breach of duty in failing to warn him.

Cause and effect.

3. The causal connection was not broken by the fact that the excavation workmen, though knowing of plaintiff's presence, negligently failed to warn him before exploding the blast by which he was injured; such negligence being a mere incident to that of defendant, or, at most, a mere contributing cause.

Omission to charge jury.

4. Failure of court, in instructing the jury, to call attention to the distinction between knowledge and notice, as imposing upon defendant the duty to warn, held not reversible error, in absence of request by defendant.

Damages.

5. Damages held not so excessive as to indicate passion or prejudice on the part of the jury.

Reduction of verdict.

6. Verdict as reduced by trial court sustained.

M. L. Countryman and Baldwin & Baldwin, for appellant.

Samuel A. Anderson and Warner E. Whipple, for respondent.

OPINION

PHILIP E. BROWN, J.

Appeal by defendant from an order denying its alternative motion after verdict for the plaintiff in an action to recover damages for personal injuries.

The accident occurred on January 25, 1912. Then, and previously, plaintiff was employed by defendant in keeping its semaphore appliances in repair. On the day stated, and for about three months prior thereto, another railway company was engaged, through a subcontractor, in excavating a roadbed across defendant's right of way, and to facilitate the work defendant had elevated its tracks for some 500 feet. In the course of the excavation operations dynamite was frequently used to blast out the earth. The charges were uncovered when fired, and the debris was thrown upon defendant's right of way and land adjacent thereto. The custom was, before firing, to warn the workmen and to flag defendant's trains. On the day in question, and for a day or two previously, defendant's bridge crew was working on its elevated tracks. One of defendant's semaphore poles, about 32 feet high, with a platform near its tip, was located some 250 feet south of the southerly point of defendant's track elevation. While plaintiff was engaged, under order of his immediate superior, a signal supervisor, in putting this semaphore in working condition, a blast was set off by the subcontractor's employees, close to the end of the track elevation nearest the semaphore pole, but not on defendant's right of way. It was exploded in the ordinary way, with no unusual results, except that plaintiff, who was on the pole, was struck by flying material and injured. Plaintiff's superior officer was unaware of the blasting operations referred to, and there was no evidence that any of defendant's officers or managing agents had knowledge thereof. There was evidence sufficient to sustain a finding that plaintiff had no knowledge or warning of the blast which occasioned his injury, or that any blasting had been or was being done, though it appeared that shortly before the blast was exploded an excavation workman was sent to notify him, and did notify his helper on the ground.

1. On the issue of negligence, the court submitted the cause to the jury, solely upon plaintiff's claim that defendant was negligent in failing to give him warning or information as to the blasting operations before putting him at work on the semaphore pole. Defendant contends that it was under no duty either to warn plaintiff of this danger, which it insists was unknown to it, or of trespasses on the part of strangers. This contention may shortly be disposed of. The master's duty to warn the servant of dangers not naturally incident to the employment, including those arising from extraneous sources, and which the former should in the exercise of reasonable care and diligence know of, and of which the latter has no knowledge or notice, we consider settled. See 26 Cyc. 1165, 1172; 3 Labatt, Master & S. (2d Ed.) § 1146. See also Guirney v. St. Paul, M. & M. Ry. Co. 43 Minn. 496, 46 N.W. 78, 19 Am. St. 256; Galloway v. Chicago, M. & St. P. Ry. Co. 56 Minn. 346, 57 N.W. 1058, 23 L.R.A. 442, 45 Am. St. 468; Lane v. Minnesota State Ag. Soc. 62 Minn. 175, 64 N.W. 382, 29 L.R.A. 708; Id. 67 Minn. 65, 69 N.W. 463; Thomas v. Wisconsin Central Ry. Co. 108 Minn. 485, 122 N.W. 456, 23 L.R.A. (N.S.) 954; Baxter v. Roberts, 44 Cal. 187, 13 Am. Rep. 160; Bradburn v. Wabash R. Co. 134 Mich. 575, 96 N.W. 929; Landry v. Great Northern R. Co. 152 Wis. 379, 140 N.W. 75; Holshouser v. Denver Gas & E. Co. 18 Colo.App. 431, 72 P. 289; Kliegel v. Aitkin, 94 Wis. 432, 69 N.W. 67, 35 L.R.A. 249, 59 Am. St. 901; O'Connor v. Armour Packing Co. 158 F. 241, 85 C.C.A. 459, 15 L.R.A. (N.S.) 812, 14 Ann. Cas. 66. The law imposes this duty to warn on the master absolutely for the protection of the servant from injury, and he must either perform it personally or see that it is performed by a representative. 2 Dunnell, Minn. Dig. § 5868. That these blasting operations involved risks beyond those assumed by plaintiff, increased them, and rendered the performance of his duties extra-hazardous, is self-evident; and the extensive and protracted nature of the contractor's work, the measures taken by defendant to prepare for it, the frequency of explosions, and the extent to which debris was scattered thereby, must be held sufficient at least to sustain a finding charging defendant with notice not only of the operations themselves, but of the manner in which they were conducted. The court properly submitted the issue of negligence so made to the jury.

2. Were the proofs sufficient to uphold the finding of the jury that defendant's omission to warn plaintiff was the proximate cause of his injury? Defendant contends: "Plaintiff's work required him to be on or about the semaphore pole at the time of the accident. A general warning would avail nothing. Had he been aware of the blasting, he would still have been obliged to rely upon being notified from time to time of the intention to fire a blast." This proposition wholly ignores the fundamental basis of the duty to warn. In a recent Wisconsin decision it is said:

"There always may be latent dangers attendant upon the usual conduct of a business of whose existence it is the duty of the master to warn the servant so that the latter can decide for himself, after being so warned, whether or not he will assume them by remaining in the employment." Ruck v. Milwaukee Brewery Co. 144 Wis. 404, 129 N.W. 414. See also Boin v. Spreckles Sugar Co. 155 Cal. 612, 102 P. 937.

So in the present case, plaintiff should have been warned before being sent to this place of danger, in order that he might have elected whether to remain in or quit the employment. No such alternative was given him at any time. Had he received such warning its effect would have been material only upon assumption of risk or contributory negligence.

Plaintiff testified:

"Q. Had you known that the defendant company, or any of its officers, warned or notified you that they were using powder or dynamite down in that vicinity what would you have done?

"A. I would have went to those men and told them to notify me in case blasting was going to be done.

"Q. Had you known there was blasting going to be done there, would you have remained upon that semaphore pole?

"A. No, sir; I would not."

Upon this testimony, and mainly upon statements of principles excerpted from 2 Dunnell, Minn. Dig. § 7000, defendant insists that "plaintiff's injury was a direct consequence -- not of his ignorance of the blasting operations in general, not of defendant's failure to warn him concerning the same -- but solely of the failure on the part of Baxter's men in charge of the blasting to notify him that the particular charge by which he was injured was about to be fired. And therefore defendant, though failing...