Lindvall v. Woods

• Decision Date: 15 July 1889
• Citation: 41 Minn. 212,42 N.W. 1020
• Parties: LINDVALL v WOODS ET AL.
• Court: Minnesota Supreme Court

41 Minn. 212

42 N.W. 1020

LINDVALLvWOODS ET AL.

Supreme Court of Minnesota.

July 15, 1889.

(Syllabus by the Court.)

1. Defendants were engaged in grading a line of railroad. The work was done by cutting down one part, and with the material making a fill in another part adjacent. The material was conveyed from the cut to the fill in dirt-cars. In the dump these cars were run on a track laid on a temporary trestle, constructed with materials (sufficient in quality and quantity) furnished on the ground by defendants; and, as the dump was filled, this trestle was from time to time extended. Part of the men worked in the cut, others drove the teams which drew the cars, others unloaded the cars and shoveled on the dump, and another, one Johnson, framed the bents and built the trestle, but all were subject to be called, on the orders of the foreman, from one part of the work to another. A foreman, one Murdock, was in charge of the work, and gave all the orders to the men, where to work, and what to do. He also hired and discharged men on the work. On the occasion in question, it being desired to raise additional bents, and lengthen the trestle, the foreman called upon plaintiff and one Peterson to assist Johnson. While plaintiff, Peterson, and the foreman were on the trestle, attempting to shove out two stringers to reach the new bent, the trestle fell, and plantiff was injured. The cause of the accident was that the trestle was not properly braced. Held, that all those engaged in the different departments of this work (including the construction of the trestle) were fellow-servants; that the trestle was not a structure furnished by the defendants for their employs to work on, but was itself a part of the construction of the road, and a part of the work which they themselves were employed to perform.

2. In the matter of building the trestle, the foreman was a fellow-servant with the workmen under him. It is not the rank of an employ,´ or his authority over other employs, but the nature of the duty or service he performs, which determines whether he is a vice-principal or a fellow-servant.

3. Whenever a master delegates to another the performance of a duty to a servant which rests upon himself absolutely, he is liable for the manner in which the duty is performed, and to the extent of the discharge of that duty the agent stands in the place of the master; but as to all other matters he is a mere co-servant with other employ.´

Appeal from district court, Hennepin county; REA, Judge.

Action by August Lindvall against Woods & Lovejoy for damages. From an order dismissing the action plaintiff appeals.

Pierce, Arctander & Nickell, for appellant.

Shaw & Cray, for respondents.

MITCHELL, J.

The defendants were engaged in grading a piece of the line of the St. Paul & Duluth Railroad. The mode of operation was to cut down one part, and with the material taken from the cut to fill a lower part adjacent. The material was conveyed from the cut to the fill in dirt-cars. In the dump these cars were run out on a track laid upon a temporary trestle, constructed with materials (sufficient in quantity and quality) furnished on the ground by the defendants; and as the dump was filled the trestle was extended from time to time, by raising additional bents, and placing stringers and ties thereon. One crew of men worked in the cut filling the cars; others drove the teams that drew the cars; others unloaded the cars, and tamped the dirt on the dump; and still another, one Johnson, framed the bents for the trestle, and attended to raising them, and putting in place the stringers and ties for the track; but all the men were subject to be called by the foreman from one department of the work to another. One Murdock was the foreman who had charge of all the men, and who gave them orders where to work and what to do. It also appears that he was in the habit of hiring and discharging men on the work. When Johnson was not engaged on the trestle, he assisted in shoveling on the dump. Whenever he wanted to raise new bents, and extend the trestle, he called for help on the foreman, who sent some of the men, usually from the dump, to assist. The plaintiff, a common laborer, was hired by Murdock, and set to work on the dump, and that was his usual employment, although it does not appear that his contract of service was limited to any particular department of the work. He did anything he was told to do, and he had been called upon to assist on the trestle prior to the occasion of the accident. On the day in question, it being desired to raise some bents and extend the trestle, Murdock took plaintiff and one Peterson to assist Johnson. One bent had been raised, and the foreman, Peterson, and plaintiff were on the trestle, attempting to shove out two long stringers so as to reach the new bent, when the trestle upon which they were fell, and caused the injury complained of. The cause of the accident was that the bents of the trestle were not properly braced.

In the law of master and servant there are two familiar rules: First, that the master is not responsible to the servant for the negligence of another servant in the same common employment, unless the master was negligent in the employment of such fellow-servant; second, that the master is bound to use due care in furnishing safe structures or instrumentalities with which the servant is to work, and he...