Lindvall v. Woods

• Decision Date: 15 July 1889
• Citation: 41 Minn. 212
• Parties: AUGUST LINDVALL <I>vs.</I> JOHN WOODS and another.
• Court: Minnesota Supreme Court

41 Minn. 212

AUGUST LINDVALL vs. JOHN WOODS and another.

Supreme Court of Minnesota.

July 15, 1889.

This action was brought in the district court for Hennepin county, and tried before Rea, J., who ordered a dismissal at the close of the evidence for plaintiff. A new trial was refused, and the plaintiff appealed.

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 shovelling 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 is responsible if, through his own negligence or the negligence of other servants employed to furnish them, they are unsafe, and injury follows. We think the facts of this case bring it within the first of these rules. The work which the defendants were engaged in was grading a railroad, and they employed various servants in different departments of labor on that work, but all liable to be called, upon the orders of the foreman, from one department to another. All those engaged in these different departments bore to each other the relation of fellow-servants. They were all serving the same master, under the same control, and all engaged in the same general work. The thing to be done was the building of the road, and the co-operation of all the employes in each department of the work was necessary to bring about that result. The trestle was not a structure furnished by the defendants for their employes to work on, but was itself a part of the work which they were employed to perform. It was a thing which they themselves made, and was as much a part of the construction of the road as was digging in the pit, loading cars, driving teams, or tamping dirt on the dump. Kelley v. Norcross, 121 Mass. 508; Colton v. Richards, 123 Mass. 484; Killea v. Faxon, 125 Mass. 485; Peschel v. Chicago, Mil. & St. Paul Ry. Co., 62 Wis. 338, (21 N. W. Rep. 269;) Gallagher v. Piper, 16 C. B. (N. S.) 669. Johnson was a fellow-servant with plaintiff.

It is claimed, however, that Murdock, the foreman, was a vice-principal, and therefore, for any negligence on his...