Gonyea v. Duluth, Missabe & Iron Range Ry. Co.
| Decision Date | 15 June 1945 |
| Docket Number | No. 34072.,34072. |
| Citation | 19 N.W.2d 384,220 Minn. 225 |
| Parties | GONYEA v. DULUTH, MISSABE & IRON RANGE RY. CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; William J. Archer, Judge.
Action by John Gonyea, special administrator of the estate of John Lawrence Gonyea, deceased, for whom Richard H. Crawford was substituted as plaintiff, against the Duluth, Missabe & Iron Range Railway Company, under the Federal Employers' Liability Act for wrongful death of plaintiff's decedent. From a judgment for defendant, the plaintiff appeals.
Reversed and new trial granted.
See, also, 18 N.W.2d 317.
James J. Courtney, of Duluth, and Beldin H. Loftsgaarden, of St. Paul, for appellant.
Dennis F. Donovan, of Duluth, for respondent.
This action was brought by the special administrator of John Lawrence Gonyea under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover for his wrongful death, alleged to have been caused by defendant's negligence. The defenses principally relied on were that decedent was employed at the time his death occurred by one Joseph D. Harrold, an independent contractor, to whom he had been loaned; that defendant was not guilty of negligence; and that decedent was guilty of contributory negligence and assumption of risk. Apparently assumption of risk is out of the case. If it is not, it should be, because the last vestige of that doctrine was obliterated by the 1939 amendment of the act, 45 U.S.C.A. § 54, abolishing the defense of assumption of risk where death of or injury to an employe of an interstate common carrier results in whole or in part from the negligence of such carrier. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411.
Here, as below, plaintiff contends that the evidence conclusively shows that decedent was not loaned as a servant to Harrold, because he had never been advised of any change of employers; that as a matter of law Harrold was not an independent contractor; that, because as a matter of law decedent was not a loaned servant and Harrold was not an independent contractor, it was error to submit those issues to the jury; and that the trial court erred in numerous respects in rulings on the admissibility of evidence and in the instructions. Defendant contends that it appears as a matter of law that it was free of negligence and that the decedent was guilty of such contributory negligence as to prevent a recovery for his death.
For some time prior to his death the decedent was employed by defendant in connection with unloading iron ore from its trains to boats moored at its docks in Duluth. The railroad tracks approach the docks from the north over a steel trestle about 70 feet high. There are two tracks, called the east and west tracks. The rails for each track are laid on separate ties, which are attached to the trestle. There is a space of about two feet between the ends of the ties of the separate tracks. This space was covered with boards on which the men walked. It was known as a catwalk. Early in the morning of October 5, 1943, a fire burned more than 500 feet of the ties and catwalk. The extent of the damage does not clearly appear, except that the ties, which normally had square edges, were badly burned so that they were rounded and part of the catwalk was totally destroyed. At any rate, it was necessary to lay new ties, attach them to the trestle, spike the rails to the ties, and rebuild the catwalk. At daybreak the work began.
A contractor by the name of Harrold was employed to do the work other than laying the rails. It was not shown definitely just what work he was to do. If he had a written contract, that fact does not appear. The terms of the contract, whether written or oral were not shown. The west track was repaired first. The burned ties and timbers were removed. Except for a short space, new ties were put in place during the day. Meanwhile, the burned ties for the east track remained in place.
At about eight o'clock on the evening of October 6, one of defendant's foremen requested decedent and some other workmen employed in unloading iron ore at the dock to go to the trestle and work there in connection with the repairs being made. He was not told that he was to work for Harrold; there was nothing said about any change of employers. When decedent got over to the trestle, defendant's foremen and bosses were there supervising the work and giving orders. Harrold was not there; he testified that he was out of town at the time. He had a foreman or straw boss on the job, but what he did does not appear, except that he "jumped" on another workman. Notwithstanding the presence of Harrold's foreman, defendant's foremen and bosses told the men what to do and supervised the work in all details. Defendant's chief engineer testified that he was present supervising and coordinating the work, and that he had "general supervision over the work, either Contractor Harrold's work or anybody's." The testimony showed that he and defendant's other representatives supervised the job in every detail. The materials used on the job were furnished by defendant out of stock kept at nearby Proctor. Among other things, defendant furnished electric light equipment and current to light the place for night work.
From this point forward, the evidence is in direct conflict on every point. Plaintiff's evidence was to the effect that decedent and the other men from the ore dock first unloaded a carload of ties; that then they carried what are called "tie plates," which are heavy steel plates used in attaching rails to ties, from the place on the trestle where they were piled to other workmen engaged in attaching the rails to the ties; that defendant gave no instructions as to the manner of doing this work; that the men engaged in doing the work adopted their own plan, consisting of carrying the plates down the west track, depositing them where they were to be used, stepping across from the end of the ties of the west track to the burned ones still in place on the east track, and then walking back on the east track to get more plates. The plates were carried to the points farthest from the place where they were piled. As the work progressed the distance became shorter, with the consequence that the men stepped across from the west to the east track at points progressively closer to the piles. Thus, each crossing place was a different one. The space between the ends of the ties of the two tracks was open where the plates were deposited, because the old catwalk had been burned and a new one had not yet been built. Defendant's foremen and bosses walked and stood on the east track where the men crossed.
Defendant's evidence was to the effect that the men were instructed to walk back and forth on the west track and to keep between its rails. Plaintiff claimed that this was impracticable, because of the presence of spikers and other workmen there. Apparently defendant, through its representatives on the job, repeatedly warned the workmen to be careful, but it does not appear that they warned them against any particular dangers.
Plaintiff's evidence was that decedent came to his death by falling through the open space between the east and west tracks to the ground about 70 feet below while engaged in stepping across the space from the west track to the east one after depositing some plates. There were seven eyewitnesses to the fact of decedent's falling, but only one, Clarence W. Johnson, saw him stepping across and knew what happened just before he fell. He testified that when decedent got his weight on one of the burned ties of the east track there was a cracking noise; that decedent's foot slipped; and that he fell to the ground below.
The evidence was in dispute as to whether the place where the decedent fell through was properly lighted. Plaintiff's evidence showed that the closest lamp was about 20 feet distant and that the light there "was not so good." This was disputed by defendant.
The workmen who were transferred from the ore dock to the trestle were paid by Harrold, even though some of them had as little as only one and a half hour's pay coming. None of them, including decedent, were informed at the time of the transfer that Harrold was to pay them. Some time after the fatal accident, Harrold had a payroll made up, which was sent down to defendant's men for signature. Numerous errors are assigned on the admission of the payroll in evidence.
1. The relation of master and servant is a contractual one. The contract may be express or implied, but there must be a contract in order to create the relationship. Dahl v. Wunderlich, 194 Minn. 35, 259 N.W. 399. A new master cannot be foisted upon a servant unwittingly. The right to select one's employer is implicit in freedom from involuntary servitude. An employer may...
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