Karas v. McAdoo

• Decision Date: 29 October 1920
• Citation: 46 N.D. 344,179 N.W. 710
• Parties: KARAS v. McADOO, Director General of Railroads.
• Court: North Dakota Supreme Court

46 N.D. 344

179 N.W. 710

KARAS

v.McADOO, Director General of Railroads.

Supreme Court of North Dakota.

Oct. 29, 1920.

Syllabus by the Court.

This is a personal injury suit in which the plaintiff, an employé of the defendant, recovered a verdict for $1,200. Working under the directions of defendant's foreman, the plaintiff and his coworker were piling up heavy water-soaked railroad ties. While lifting a tie to the height of five feet, one end slipped from the hand of the coworker and fell to the ground. The fall jarred the tie from the hands of the plaintiff, and it fell against him and severely bruised his foot. For piling the ties to such a height defendant should have provided skids on which to slide them up a gradual incline. Obviously, there was a safe and easy way of doing the work, and hence defendant should not have ordered or permitted the doing of it in a way that was onerous and dangerous.

Appeal from District Court, Ward County; Frank E. Fisk, Judge.

Action by George Karas against William G. McAdoo, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed.Dudley L. Nash, of Minot, and Murphy & Toner, of Grand Forks, for appellant.

J. E. Burke and Palda & Aaker, all of Minot, for respondent.

ROBINSON, J.

This is a personal injury suit. Defendant appeals from a judgment on a verdict for $1,200. In August, 1918, the plaintiff was in the employ of the Great Northern Railway Company as a laborer. He and others were piling up railroad ties as they were thrown from the cars. The ties were piled in bunches of eight tiers, and the top of each tier was about six feet high. The ties were water-soaked and weighed about 300 pounds. When putting on the top tier the plaintiff had to lift his end of the tie five feet or more. This was done under the direction of the foreman of the company. While making such a lift the end of the tie slipped from the hands of the coworker of the plaintiff, and falling to the ground it jarred from the hands of the plaintiff the end of the tie, and it fell against him, knocked him down, and fell on his leg and foot with such force that it caused him to faint and become unconscious. His foot was badly bruised. The evidence shows that the work was done under the direction of the foreman of defendant, and it was dangerous for one man to lift such heavy water-soaked ties to such a height, and that in such lifting it was no uncommon thing for men to get hurt.

Now, if defendant had provided two skids about twelve feet long, then all of the lifting and all of the danger might have been avoided by placing one end of each skid on the ground and the other end on the pile of ties and skidding or slipping each tie up the skids. That would have made the work light and easy.

The law of the case has been stated by this court. Lilly v. Elm Point Mining Co., 170 N. W. 128:

“One who for a good consideration promises to serve another must perform the service and must use ordinary care and diligence therein. Comp. Laws, § 6112. An employé must substantially comply with the directions of his employer concerning the services in which he is engaged. Comp. Laws, § 6115. An employer is not bound to indemnify his employé for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed. Comp. Laws, § 6107. An employer must in all cases indemnify his employé for losses caused by the former's want of ordinary care. Comp. Laws, § 6108.”

The common carriers by steam railroads are liable in damages for injury to employés resulting in whole or in part from the negligence of any officer, agent, or employé of such carrier, or by reason of any defect of insufficiency due to its negligence or defect in its cars, engines, or appliances. Laws 1915, c. 207.

Here there was a defect in the appliances for piling up the heavy water-soaked ties, and by reason of such defect the injury resulted. As in the case cited, the court said:

“The superintendent had no right to order or even permit him (the plaintiff) to do what was dangerous or to work in an unsafe place.”

So, in this case, the company, by its foreman, had no right to order or permit the plaintiff and his coworker to take the chances of injury by lifting heavy water-soaked ties to the height of five feet.

After the injury the plaintiff was taken to a hospital of defendant and there nursed and treated for 23 days and then given $70, on signing a release of...