Greene v. Minneapolis & St. Louis Ry. Co.

• Decision Date: 24 November 1883
• Parties: JOHN J. GREENE <I>vs.</I> MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY.
• Court: Minnesota Supreme Court

31 Minn. 248

JOHN J. GREENE vs. MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY.

Supreme Court of Minnesota.

November 24, 1883.

Appeal by defendant from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial.

J. D. Springer, for appellant.

Lovely & Morgan, for respondent.

MITCHELL, J.

If a servant, before he enters a service, knows, or afterwards discovers, that the instrumentalities furnished for his use are defective, and understands, or by exercise of ordinary observation ought to understand, the risks to which he is thereby exposed, and if, notwithstanding such knowledge, he, without objection, and without any promise on the part of the employer that such defects will be remedied, enters or continues in such service, he cannot recover for injuries resulting therefrom, but will be deemed to have assumed all the risks of the employment thus known. Sometimes this rule has been misapplied by treating a mere continuance of a servant in the employment as conclusive evidence of his having waived objections to the known defects, regardless of facts tending to rebut the presumption of such waiver. But, with the limitations annexed, the rule as stated is undoubtedly the law as established by an unbroken line of authorities, although they disagree somewhat whether it should be put on the ground of waiver, or of contributory negligence. Clark v. St. Paul & Sioux City R. Co., 28 Minn. 128.

But it is now almost equally well settled that if a servant who has knowledge of defects in the instrumentalities furnished for his use, gives notice thereof to his employer, who thereupon promises that they shall be remedied, the servant may recover for an injury caused thereby, at least where the master requested him to continue in the service, and the injury occurred within the time at which the defects were promised to be remedied, and where the instrumentality, although defective, was not so imminently and immediately dangerous that a man of ordinary prudence would have refused longer to use it. Under such circumstances his subsequent use of the defective instrumentality would not necessarily, or as a matter of law, make the servant guilty of contributory negligence, but it would be a question for the jury whether, in continuing its use after he knew of the defect, he was in the exercise of ordinary care. Many of the cases go farther than this, but this is as far as is necessary to go under the facts of the present case.

Courts also differ as to the ground upon which this should be placed. Some place it upon grounds of policy and justice, — upon a consideration of the unequal situation of master and servant; others, upon the ground that, in such cases, the facts rebut the presumption of a waiver on the part of the servant; others, upon the ground of a contract on the part of the employer, implied from the facts, that if the servant continues in the service in the mean time, and until the defects are remedied, the employer and not the servant will assume the risks.

We will not attempt to determine which of these is the best or most logical reason for the rule, except to say that the last seems to us very forcible, especially where there is a request to the servant to continue in the service. It is sufficient for us that the rule has generally commended itself to the judicial mind (as it does to us) as founded in sound policy and common justice. If the emergencies of a master's business require him temporarily to use defective machinery, we fail to see what right he has in law or natural justice to insist that it shall be done at the risk of the servant and not his own, when, notwithstanding the servant's objection to the condition of the machinery, he has requested or induced him to continue its use, under a promise thereafter to repair it. Clarke v. Holmes, 7 Hurl. & N. 937, 948; Hough v. Ry. Co., 100 U. S. 213; Patterson v. Pittsburg & C. R. Co., 76 Pa. St. 389; Laning v. N. Y. C. R. Co., 49 N. Y. 521; Snow v. Housatonic R. Co., 8 Allen, 441; Holmes v. Worthington, 2 Foster & F. 533. See, also, Ford v. Fitchburg R. Co., 110 Mass. 240; Greenleaf v. Illinois Cent. R. Co., 29 Iowa, 14; Kroy v. Chicago, etc., R. Co., 32 Iowa, 357; Cooley on Torts, 559; Shearman & Redfield on Negligence, § 96; Moak's Underhill on Torts, 61-2; Thomp. on Negligence, 1009, 1010; Wood, Mast. & Serv. § 378, etc.

Appellant suggests that the cases only go to the extent of holding the employer liable where the servant, although aware of the defect, is ignorant of the risks, and that they would not apply where, as in this case, the servant, an experienced engineer, fully understood the risks to which the defects in the engine would naturally expose him. An examination of the cases cited will not bear out this position. None of them are made to turn upon any such question. It is true, in the leading case of Clark v. Holmes, supra, Byles, J., in discussing the question how far knowledge of the defect by the servant constitutes negligence, after remarking that knowledge is only...