Gunn v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Company

• Decision Date: 12 July 1916
• Court: North Dakota Supreme Court

158 N.W. 1004

34 N.D. 418

JOHN M. GUNN v. MINNEAPOLIS, ST. PAUL, & SAULT STE. MARIE RAILWAY COMPANY

Supreme Court of North Dakota

July 12, 1916

Appeal from the District Court of Divide County; K. E. Leighton, J.

Action to recover damages for personal injuries sustained while unloading a freight car.

Judgment for plaintiff. Defendant appeals.

Affirmed.

John E Green and Palda, Aaker & Greene (Alfred H. Bright and John L Erdall, of counsel), for appellant.

The so-called "Fellow-Servant Act" of this state does not apply in this case. Comp. Laws 1913, § 4804; Beleal v. Northern P. R. Co. 15 N.D. 318, 108 N.W 33, 11 Ann. Cas. 921, 20 Am. Neg. Rep. 453.

To come within the operation of the fellow-servant law, the injury must have occurred while the plaintiff or his fellow servant responsible for the injury, was engaged in the business of operating a railroad. The services here were common to numerous other employees and did not consist of railroad work. Beleal v. Northern P. R. Co. 11 Ann. Cas. 924 et seq. note.

E. R. Sinkler and D. C. Greenleaf, for respondent.

A railroad company is liable in damages for injuries sustained by one of its employees where, as one of the grounds of negligence, it is shown that an insufficient number of men was employed to do a given piece of work on which the injured person was engaged. Rosin v. Danaher Lumber Co. 2 N. C. C. A. 265, note; Di Bari v. J. W. Bishop Co. 17 L.R.A. (N.S.) 773, note; Johnson v. Ashland Water Co. 71 Wis. 553, 5 Am. St. Rep. 243, 37 N.W. 823, 20 Am. & Eng. Enc. Law, 91; Bonn v. Galveston, H. & S. A. R. Co. Tex. Civ. App. , 82 S.W. 808; Peterson v. American Grass Twine Co. 90 Minn. 343, 96 N.W. 913, 15 Am. Neg. Rep. 91; Jones v. Old Dominion Cotton Mills, 82 Va. 140, 3 Am. St. Rep. 92; Mad River & L. E. R. Co. v. Barber, 5 Ohio St. 541, 67 Am. Dec. 312; Booth v. Boston & A. R. Co. 73 N.Y. 38, 29 Am. Rep. 97; Wood, Mast. & S. § 394; Beardsley v. Murray Iron Works Co. 129 Iowa 675, 106 N.W. 181; Kirk v. Jajko, 224 Ill. 338, 79 N.E. 577; 3 Labatt, Mast. & S. 2912; Fitter v. Iowa Teleph. Co. 143 Iowa 689, 121 N.W. 48.

It is the duty of the master to furnish enough force to do the work with reasonable safety to all those engaged in it. That if he knew, or by ordinary care could have known, that the force was inadequate, and if plaintiff did not know it, and in consequence of such lack of force plaintiff was injured, the master is liable, except for plaintiff's own negligence. Standard Sanitary Mfg. Co. v. Minor, 33 Ky. L. Rep. 982, 112 S.W. 572; Craig v. Chicago & A. R. Co. 54 Mo.App. 523; Alabama G. S. R. Co. v. Vail, 142 Ala. 134, 110 Am. St. Rep. 23, 38 So. 124; Cheeney v. Ocean S. S. Co. 92 Ga. 726, 44 Am. St. Rep. 113, 19 S.E. 33, 14 Am. Neg. Cas. 69.

Plaintiff was engaged in railroad work, and was within the protection of the statute. The unloading of cars, clearing the tracks, and all such work, is railroad work within the meaning of the statute. Without the doing of such work, trains could not be run, and the general traffic of the railroad would be suspended. It is a part of the operation of the railroad, like the keeping of the tracks in repair and clear, for the running of trains. Turner v. Terminal R. Asso. 132 Mo.App. 38, 111 S.W. 841; Orendorff v. Terminal R. Asso. 116 Mo.App. 348, 92 S.W. 148; Texas C. R. Co. v. Pelfrey, 35 Tex. Civ. App. 501, 80 S.W. 1036; Daley v. Boston & A. R. Co. 147 Mass. 101, 16 N.E. 690; Chicago K. & W. R. Co. v. Pontius, 157 U.S. 209, 39 L.Ed. 675, 15 S.Ct. 585; Union P. R. Co. v. Harris, 33 Kan. 416, 6 P. 572; Deppe v. Chicago, R. I. & P. R. Co. 36 Iowa 52; Akeson v. Chicago, B. & Q. R. Co. 106 Iowa 54, 75 N.W. 676, 4 Am. Neg. Rep. 384; Janssen v. Great Northern R. Co. 109 Minn. 285, 123 N.W. 664; Tay v. Willmar & S. F. R. Co. 100 Minn. 131, 110 N.W. 433; Kreuzer v. Great Northern R. Co. 83 Minn. 385, 86 N.W. 413, 10 Am. Neg. Rep. 293; Anderson v. Great Northern R. Co. 74 Minn. 432, 77 N.W. 240; Southern R. Co. v. Rutledge, 4 Ga.App. 80, 60 S.E. 1011; Baker v. Western & A. R. Co. 68 Ga. 699; St. Louis Merchants' Bridge Terminal R. Co. v. Callahan, 194 U.S. 628, 48 L.Ed. 1157, 24 S.Ct. 857, 170 Mo. 473, 60 L.R.A. 252, 94 Am. St. Rep. 746, 71 S.W. 208; Stubbs v. Omaha, K. C. & E. R. Co. 85 Mo.App. 192; Briscoe v. Chicago, B. & Q. R. Co. 130 Mo.App. 513, 109 S.W. 93; Nicholson v. Transylvania R. Co. 138 N.C. 516, 51 S.E. 40; Britt v. Carolina & N. R. Co. 144 N.C. 242, 56 S.E. 910; Thomas v. Raleigh & A. Airline R. Co. 129 N.C. 392, 40 S.E. 201; Meo v. Chicago & N.W. R. Co. 138 Wis. 340, 120 N.W. 344; Hardt v. Chicago, M. & St. P. R. Co. 130 Wis. 512, 110 N.W. 427; Luich v. Great Northern R. Co. 152 Wis. 414, 140 N.W. 33; Kiley v. Chicago, M. & St. P. R. Co. 138 Wis. 215, 119 N.W. 309, 120 N.W. 756, 21 Am. Neg. Rep. 394; Pyne v. Chicago, B. & Q. R. Co. 54 Iowa 223, 37 Am. Rep. 198, 6 N.W. 282; Reddington v. Chicago, M. & St. P. R. Co. Iowa , 75 N.W. 679; Nichols v. Chicago, M. & St. P. R. Co. 60 Minn. 319, 62 N.W. 386; Hanson v. Northern P. R. Co. 108 Minn. 94, 22 L.R.A.(N.S.) 968, 121 N.W. 607; Njus v. Chicago, M. & St. P. R. Co. 47 Minn. 92, 49 N.W. 527; Metz v. Chicago, B. & Q. R. Co. 88 Neb. 459, 129 N.W. 994; Sigman v. Southern R. Co. 135 N.C. 181, 47 S.E. 420; Missouri, K. & T. R. Co. v. Smith, 45 Tex. Civ. App. 128, 99 S.W. 743; St. Louis Southwestern R. Co. v. Thornton, 46 Tex. Civ. App. 649, 103 S.W. 437; Atchison, T. & S. F. R. Co. v. Koehler, 37 Kan. 463, 15 P. 567; Atchison, T. & S. F. R. Co. v. Brassfield, 51 Kan. 167, 32 P. 815.

The rule of liability must extend to all of a certain class, and equal protection of the law must be afforded. Robinson v. Baltimore & O. R. Co. 237 U.S. 84, 59 L.Ed. 849, 35 S.Ct. 491, 8 N. C. C. A. 1; Thomas v. Boston & M. R. Co. 134 C. C. A. 554, 219 F. 180, 8 N. C. C. A. 981; Pedersen v. Delaware, L. & W. R. Co. 229 U.S. 146, 57 L.Ed. 1125, 33 S.Ct. 616, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779; Cousins v. Illinois C. R. Co. 126 Minn. 172, 148 N.W. 58, 6 N. C. C. A. 182.

OPINION

BRUCE, J.

This is an action to recover damages occasioned to a railroad employee through the carelessness of a fellow servant in allowing a feed grinder to fall upon him and while unloading freight from a railroad car at about 8 o'clock at night, and in order that it might proceed on its journey the next morning, and which car was standing on the main track of the railroad, the engine having left and gone to a station some 10 miles distant in order to get water. A verdict was rendered for the plaintiff, and from the judgment entered thereon the defendant appeals.

The only point argued by counsel for appellant on this appeal is that the evidence conclusively shows that the plaintiff was injured through the negligence of his fellow servant, Vandervoight, and that § 4804 of the Compiled Laws of 1913, which takes this defense away from railway companies, is not applicable to the case at bar. The statute in question provides that "every common carrier shall be liable to any of its employees, or in case of the death of an employee, to his personal representative, for the benefit of his widow, children or next of kin, for all damages which may result from the negligence of any of its officers, agents or employees, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways or works." This act was passed in 1907, and is § 1 of chapter 203 of the Laws of that year.

Counsel's chief reliance is placed upon the language which is used in case of Beleal v. Northern P. R. Co. 15 N.D. 318 108 N.W. 33, 20 Am. Neg. Rep. 453, and the cases collected in the note thereto in 11 Ann. Cas. 924, and in which case this court held that the act did not apply to or protect a laborer who was engaged in cutting ice from the Cheyenne river and loading it into cars for the use of the company, the ice being conveyed by means of a chute to the cars and from a platform which was constructed on the bank of the river. Counsel for appellant argues that under the decision above quoted a railway company is only liable and the act only applies where the employee is engaged in operating the railway and is exposed to the peculiar dangers attending that business. He maintains that the employment of the plaintiff was not of that nature or class, and that under the decision above quoted, the extra-hazardous situation which is incident to such operation is necessary to save the statute from the taint of class legislation. His whole brief and argument indeed is centered around the following quotation from the Beleal Case, and wherein this court said that "there can be no doubt that the business of running trains, keeping the tracks in repair, and other similar work connected with the use and operation of railroads--that class of work which may be called railroad work proper--is of a peculiarly hazardous nature, and for that reason may be properly placed in a class by itself to that extent, for the purpose of imposing on the master a greater liability to the employees so engaged, and giving the latter greater rights against the master in case of injury, than in other occupations; . . . such a classification is proper because the peculiar nature of the work furnishes a proper basis therefor. The statute in question, however, taken literally, as respondent would have us do, purports to put railroad corporations in a class by themselves, simply because they are such corporations, and imposes upon them a liability from which other corporations under like circumstances are exempt, and extends to employees of a railroad, regardless of the nature of their work, certain rights which other laborers engaged in the same kind of work do not enjoy. Take this case as an illustration. There are many other...