Hennessy v. Ginsberg
| Decision Date | 02 December 1920 |
| Docket Number | 6 |
| Court | North Dakota Supreme Court |
Rehearing denied December 31, 1920.
Action for personal injuries in Grand Forks County, Cole, J.
From a judgment entered upon a directed verdict and an order denying a new trial, the plaintiff appeals.
Reversed.
Reversed and remanded.
J. F T. O'Connor and Svenbjorn Johnson, for appellant.
A servant who is injured while obeying a direct command of his master does not assume the risk of such injury, nor is he guilty of contributory negligence in obeying the command. Mellette v. Indianapolis Northern Tract Co. 86 N.E 433; Hagerty v. Evans, 87 Minn. 435, 92 N.W. 399; Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St. 298, 55 N.E. 998; Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N.E. 876; Offutt v. World's Columbian Exposition, 175 Ill. 472, 51 N.E. 651; Western Stone Co. v. Musical, 196 Ill. 382, 89 Am. St. Rep. 325, 63 N.E. 664; Glucose Sugar Ref. Co. v. McDonnell, 132 Ill.App. 386; Fearington v. Blackwell Durham Tobacco Co. 141 N.C. 80, 53 S.E. 662; Bokap v. Chicago & A. R. Co. 123 Mo.App. 270, 100 S.W. 689; Buckner v. Stock Yards Horse & Mule Co. 221 Mo. 700, 120 S.W. 766; Adolff v. Columbia Pretzel & Baking Co. 100 Mo.App. 199, 73 S.W. 321.
The primary duty of the servant is obedience, and he cannot be charged with negligence in obeying an order of the master unless he acts negligently in so obeying. Rayburn v. Central Iowa R. R. Co. 35 N.W. 606; Sipes v. Michigan Stock Co. 100 N.W. 447; St. Louis v. Morris, 93 P. 153; Polaski v. Pittsburgh Coal Co. 14 L.R.A. (N.S.) 952, 114 N.W. 437.
Murphy & Toner, for respondents.
If the injury could not have been reasonably anticipated as the probable result of the act of negligence, such act is either a remote cause or no cause of injury. Crane Co. v. Busdicker, 255 F. 664; Homisett v. Light & P. Co. 81 So. 22; R. Co. v. Sears, 210 S.W. 684.
To constitute "actionable negligence" the injury must be a natural and probable consequence of the negligence complained of, and must be such that it should have been foreseen in the light of attending circumstances. Nichols v. Telephone Co. 109 A. 649; R. Co. v. Clement, 220 S.W. 407; Donald v. Coal Co. 103 S.E. 55; Hogan v. Bragg (N.D.) 170 N.W. 374; Bona v. Auto Co. 208 S.W. 306.
"If subsequent to the original negligent act a new cause has intervened, of itself sufficient to stand as a cause of the injury, the original negligence is too remote." Bergman v. R. Co. 178 P. 68; Northrup v. Eakes, 178 P. 266; Dreher v. Mill Co. 98 S.E. 194.
The law of contributory negligence forbids a recovery by one who by his own fault brings an injury upon himself. 29 Cyc. 506-508.
"Contributory negligence is a failure to exercise the degree of care for one's own safety usually exercised by reasonably careful and prudent men in the same circumstances, which failure causes or helps to bring about injury, a result which would not have occurred but for such failure." R. Co. v. Morgan, 192 S.W. 672; Taylor v. Bldg. Corp. 99 A. 284; Int. Harv. Co. v. Langermann, 262 F. 498.
The servant has the right to assume and to rely upon the assumption that the master has provided a reasonably safe place for him to work, unless such place is obviously and necessarily dangerous. Thompson v. R. Co. (S.D.) 132 N.W. 158; Nelson v. Martinson, 212 F. 912.
No recovery can be had for injuries received by an experienced carpenter who was a foreman on the work of constructing a building, for a fall received while crossing from one side of the building to another, using the bottom cord of a truss as a bridge, when he knew and fully appreciated the danger of using the cord, and there was a safe method of going to the other side. Boyer v. Eastern R. Co. (Minn.) 12 Am. Neg. Rep. 496; Hanley v. Grand Trunk, 62 N.H. 274; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492; Cartwright v. R. Co. 228 F. 876; Kelly v. R. Co. 9 N.W. 816; Bradshaw v. R. Co. 21 S.W. 346; Carr v. Construction Co. 48 Hun, 266; Kennedy v. R. Co. 17 A. 7; Knittal v. R. Co. 33 Ohio St. 468; Bengeton v. R. Co. 50 N.W. 531; Weed v. R. Co. 99 N.W. 827; R. Co. v. Ryan, 29 S.W. 527; Norton v. R. Co. 30 S.W. 599; Liney v. R. Co. 49 N.W. 187; Berlick v. Co. 67 N.W. 712; Buckman v. Coal Co. 77 N.W. 889.
This is an action to recover damages for personal injuries alleged to have been received by the plaintiff while in the employ, and by reason of the alleged negligence, of the defendants.
The complaint alleges that the defendants are partners engaged in the business of collecting and distributing scrap iron in the city of Grand Forks in this state; that the plaintiff was employed by the defendants as a laborer at their place of business, and that his duties consisted in helping to unload cars and to move and remove scrap iron; that on or about October 8, 1917, and for some time prior thereto, the defendants also had in their employ one Heine, who was engaged in the same kind of work as that performed by the plaintiff; that on or about October 8, 1917, the plaintiff, while in the employ of the defendants, and while engaged in discharging the regular duties of his employment, was injured while helping to unload a car of scrap iron; that such injury was occasioned by a very heavy piece of iron weighing about 900 pounds which fell upon him, as a result of which plaintiff's right leg was broken, and he sustained permanent injuries; that the accident occurred while the plaintiff and said Heine were engaged in unloading scrap iron from a freight car, and was caused wholly by reason of the negligence of the defendants, in this that said Heine had been in the employ of the defendants for several months, engaged in loading and unloading scrap iron; that said Heine was a grossly incompetent and generally careless worker; that said Heine during all the time that he was employed by the defendants was habitually negligent, careless, and incompetent; that he was unmindful of the danger to his coworkers and fellow servants, resulting from his careless and negligent manner of loading in, and in unloading from, freight cars, the heavy pieces of iron and steel; that he was unfit to work with others in unloading scrap iron; "that the said Heine was ill-tempered, became quickly irritated, and angered if the work did not proceed to his exact liking, that he frequently each day became very angry, and, when he did become angry, jerked pieces of iron and threw them around carelessly and negligently, and in total disregard of the danger to his fellow servants and coworkers incident to such conduct; that on the day and date and at the moment when the injury aforesaid occurred, the said Heine was in a fit of anger and rage, and, while in such fit of anger and rage, so handled the piece of iron which fell upon this plaintiff that it slid upon the plaintiff and caused the injury aforesaid; that because of the negligence and carelessness of the defendants in employing the said Heine, who himself was grossly incompetent and habitually careless and of a violent disposition, the plaintiff suffered injuries as aforesaid; that said iron was so negligently and so carelessly handled by the said Heine that it was caused to negligently and carelessly slide upon the plaintiff and cause the injuries hereinbefore described.
The answer admitted the employment of the plaintiff by defendant; also, that he was injured while in their employ, and engaged in unloading a car of scrap iron. It is averred, however, that the injuries were slight and that plaintiff has fully recovered. It is further averred that the injuries "were caused through the carelessness and contributory negligence of the plaintiff himself," and that he "assumed the risk of injury and consequent damages of the character described in the complaint."
At the close of plaintiff's case the defendants moved for a directed verdict on the ground "that the plaintiff has wholly failed to establish the material allegations of the complaint." The motion was granted, and the plaintiff has appealed from the judgment and from the order denying his motion for a new trial.
Under the statutes applicable to this case, "an employer must in all cases indemnify his employee for losses caused by the former's want of ordinary care." Comp. Laws 1913, § 6108. But "an employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee." Comp. Laws 1913, § 6107.
Labatt (Labatt, Mast. & S. § 1079) says: ...
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