Holtz v. Great N. Ry. Co.

• Decision Date: 03 November 1897
• Citation: 69 Minn. 524,72 N.W. 805
• Parties: HOLTZ v GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

69 Minn. 524

72 N.W. 805

HOLTZvGREAT NORTHERN RY. CO.

Supreme Court of Minnesota.

Nov. 3, 1897.

(Syllabus by the Court.)

In an action to recover damages for personal injuries caused by the alleged negligence of the defendant, held: (1) That, even assuming that defendant would be liable for negligence on part of its “foreman,” whose acts resulted in the injury to plaintiff, there was no evidence of actionable negligence on his part. (2) But, in the matter then in hand (assisting in the work of repairing a car), the foreman was a mere fellow servant of the plaintiff. (3) The work in which plaintiff was engaged involved no element of hazard or danger peculiar to the operation of railroads, and hence Gen. St. 1894, § 2701, does not apply.

Appeal from district court, Stearns county D. B. Searle, Judge.

Action by William Holtz against the Great Northern Railway Company. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Reversed.C. Wellington and W. R. Begg, for appellant.

G. W. Stewart, for respondent.

MITCHELL, J.

The undisputed facts in this case are as follows: The plaintiff had been at work for the defendant for seven years, his work during the last seven months being in the shops, and the last two weeks in the repair shop or shed. On the day of the accident, he and three others employed by the defendant were engaged in repairing a car in the repair shed. One of the four, named Youngheims, was the “foreman” of the gang. One end of the car upon which the men were at work rested upon a pair of trucks upon the rails of the repair track, while the other end, the trucks being removed, was supported by trusses and jackscrews, in the manner shown by Exhibit A in the paper book. Part of the work of repairs on this, as on other occasions, consisted of driving bolts from the inside through holes made for that purpose in the timbers of the bottom of the car, and then, from underneath, putting nuts on the projecting ends of the bolts. Bolts of different lengths were required, depending on the thickness of the timbers. They had to project through the bottom of the car at least an inch and a half, in order to give sufficient space to put on a plate and nut. The bolts used in repairing cars were kept in the shop in ricks or boxes, numbered so as to indicate their size. The workmen could not always judge in advance of the exact length of bolt required, and it frequently happened that bolts were used that were an inch or so too long, in which case the man would cut off the end with a cold chisel after the plate and nut were put on and tightened up. This was all known to the plaintiff. Youngheims was inside the car, driving in the bolts, and plaintiff was under the car, on his knees, putting plates and nuts on the bolts as they were driven through. Youngheims had driven in three bolts, and, needing a fourth, directed one of the workmen to go and get one of a certain size. The workman returned, and reported, as the fact was, that there were none of that size in the ricks, whereupon Youngheims directed him to go and get one of another and larger size, which the workman did. Youngheims drove this bolt through the hole, and the projecting end of it came in contact...