Koofos v. Great N. Ry. Co.

• Decision Date: 21 December 1918
• Citation: 41 N.D. 176,170 N.W. 859
• Parties: KOOFOS v. GREAT NORTHERN RY. CO.
• Court: North Dakota Supreme Court

41 N.D. 176

170 N.W. 859

KOOFOS

v.GREAT NORTHERN RY. CO.

Supreme Court of North Dakota.

Dec. 21, 1918.

Syllabus by the Court.

An employé of an interstate railway carrier, who is injured while removing snow from a track over which interstate trains are being run regularly, is engaged in interstate commerce within the meaning of the Employers' Liability Act of Congress of April 22, 1908 (U. S. Comp. St. §§ 8657-8665).

The federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) abolished the doctrine of contributory negligence as a bar to recovery, and established the doctrine of comparative negligence.

Under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), the damages recoverable by an employé guilty of contributory negligence bear “the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both.”

Where the causal negligence is partly attributable to the employer, the contributory negligence of the employé will not defeat recovery, but only lessen the damages. It is only when the employé's act is the sole cause-when the employer's act is no part of the causation-that the employer is free from liability under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).

It is negligence for which the master may be held responsible if, knowing of any peril which is known to the servant also, he fails to remove it in accordance with assurances made by him to the servant that he will do so.

A servant who refrains from abandoning certain work on the assurance of his master that he will remove a known peril cannot ordinarily be said to have assumed the risk of injury from such peril.

Appeal from District Court, Ward County; Leighton, Judge.

Action by Gust Koofos against the Great Northern Railway Company. Judgment for plaintiff, and from an order denying its alternative motion for a judgment notwithstanding the verdict or for a new trial, defendant appeals. Affirmed.Murphy & Toner, of Grand Forks, for appellant.

McGee & Goss and E. R. Sinkler, all of Minot, for respondent.

CHRISTIANSON, C. J.

This is an action for personal injuries, brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]). The case was tried to a jury, which returned a verdict in favor of the plaintiff for $2,295. Judgment was entered pursuant to the verdict, and the defendant appeals from the judgment and the order denying its motion in the alternative for judgment notwithstanding the verdict or for a new trial.

The evidence showed that the plaintiff, who at that time was 23 years of age, went to work for the defendant, railway company, about January 19, 1916, as a member of an extra gang employed in shoveling snow and fixing snow fences on the defendant's railroad in Montana. On Sunday, February 7, 1916, the extra gang was at Scobey, Mont. On the evening of that day the foreman requested plaintiff and the other members of the crew to go and clean the snow out of some cuts between Scobey and Flaxville. While there is some conflict as to the exact degree, it is undisputed that the weather was very cold. The plaintiff testified that the thermometer registered more than 40° below zero, and that there was a blizzard. According to plaintiff's testimony he objected to going out to work that evening owing to the existing weather conditions, whereupon he was assured by the foreman that a warm passenger coach would be taken along in which the workmen could ride to and from work and to which they could retire and warm themselves if it became necessary while they were working; also, that fires would be built along the track; that they would go out only a distance of two or three miles, and would be gone only about two or three hours. The plaintiff testified that he thereupon dressed for work by putting on the same amount and kind of clothing which he had been wearing while engaged in performing similar work for the defendant that winter, and that he started a fire in the heater in the coach connected with the engine. As they were about to start the foreman informed the plaintiff and other members of the crew that it was unnecessary to take the coach, as they were only going a distance of two or three miles and would be gone only two or three hours; that the plaintiff and the other members of the crew thereupon in accordance with the directions of the foreman climbed upon the tender of the engine, and that they rode there in traveling to their work. They left Scobey about 8 or 8:30 in the evening, but instead of going a distance of only two or three miles and returning in two or three hours, they continued to move from cut to cut for a distance of from ten to twelve miles, and did not return to Scobey until about, or after, 5 o'clock the following morning. No fires were built along the track. The plaintiff and the other members of the crew from time to time went into the engine cab and warmed themselves. The plaintiff testified that some time after midnight he endeavored to go into the cab for the purpose of warming himself, and informed the foreman that he was getting cold, and that his feet were very cold, and that the foreman prevented him from getting on the engine, and told him, in vile and profane language, to go back to work; that when they started back to town the plaintiff was instructed by the foreman to get up on the tender; that he did so, and rode back to Scobey in that position; that on arriving at Scobey he reported to the foreman that his feet were frozen; and that some four hours later the foreman secured a doctor. It is undisputed that plaintiff froze both of his feet, and that as a result he was confined to his bed in Scobey for four days, and on the fifth was taken to Williston by the defendant and placed in a hospital in that city; that he remained in such hospital for some time; and that the defendant's surgeon amputated two toes on the left foot. The testimony also showed that at the time of the trial both feet were discolored; that the cause of the discoloration was the enlargement of the blood vessels, thereby causing a lack of normal circulation and rendering the feet more susceptible to heat and cold. A physician testified that this condition was permanent.

The plaintiff's testimony is disputed on many points. The foreman specifically denied that he ever promised to take along a heated coach or build fires along the railroad track, but he admits that he stated they would go out only two or three miles, and be gone only for two or three hours. He, however, denied positively that he refused to permit the plaintiff to get on the engine for the purpose of warming himself, or that he used the language which plaintiff claims, or any other abusive language, toward the plaintiff.

[1] Appellant contends that plaintiff was not engaged in interstate commerce within the meaning of the federal Employers' Liability Act. The contention is obviously without merit. The question was not raised in any manner in the court below. And there was no reason for raising it, as the evidence all showed that the passenger trains on the line where plaintiff was employed at the time he sustained his injuries were all interstate trains. Plaintiff was engaged in clearing a track over which an interstate passenger train would leave Scobey the following morning. He was clearly engaged in interstate commerce. Pedersen v. Del., L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153;Lombardo v. Boston & M. R. Co. (D. C.) 223 Fed. 427;Hardwick v. Wabash R. Co., 181 Mo. App. 156, 168 S. W. 328;Sanders v. Charleston & W. C. R. Co., 97 S. C. 50, 81 S. E. 283;Clark v. Chicago G. W. R. Co., 170 Iowa, 452, 152 N. W. 635;Southern R. Co. v. Puckett, 244 U. S. 571, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69. See, also, Hein v. Great Northern R. Co., 34 N. D. 440, 159 N. W. 14.

Defendant also contends that: (1) Defendant's negligence has not been proven; (2) plaintiff was guilty of contributory negligence; and (3) plaintiff assumed the risk of the injuries. And it is therefore argued that the court erred in denying a motion for a directed verdict based upon these grounds.

It is, of course, elementary that negligence, contributory negligence, and assumption of risk are, ordinarily, questions for the jury. They become questions of law only when reasonable men, from the evidence, can draw but one conclusion with respect thereto.

[2][3] As already stated, this action was brought under the Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat, 65 [U. S. Comp. Stat. § 8657]). There is no liability under that act in the absence of negligence on the part of the railroad company or some of its employés. Seaboard A. L. R. Co. v. Horton, 233 U. S. 492, 501, 502, 34 Sup. Ct. 635, 638, 58 L. Ed. 1062, 1069, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475;Manson v. Great Northern R. Co., 31 N. D. 643, 649, 155 N. W. 32. But by section 3 of the act it is declared that:

“The fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence...