Lindvall v. Woods

• Decision Date: 12 February 1891
• Citation: 44 F. 855
• Parties: LINDVALL v. WOODS et al.
• Court: U.S. District Court — District of Minnesota

44 F. 855

LINDVALL v. WOODS et al.

United States Circuit Court, D. Minnesota.

February 12, 1891

Arctander & Arctander, for plaintiff.

Shaw &amp Cray, for defendant.

NELSON J., (charging jury.)

This has been a very long and tedious case, but it is interesting from the fact that many important legal questions have arisen, aside from the general interest taken in the testimony with reference to the facts. You have given it such patient attention that it does not seem to me necessary to go very far into the details of the testimony. The counsel have very thoroughly and exhaustively presented the several theories upon which a verdict is asked at your hands. Now what is the case, gentlemen? The plaintiff, a laborer, brings this action to recover damages against the defendants for injuries which it is alleged he sustained by reason of the negligence of the defendants in the course of his employment that is to say, he claims that the injuries he sustained were the natural consequence of the negligence of the defendants that their negligence was the proximate cause of his injury. It appears that the defendants were contractors,-- railroad contractors, principally,-- and in the spring of 1888 they had a contract to grade somewhere about 10 or 12 miles of the St. Paul & Duluth Railroad, straightening the track; and in doing this it was necessary to do considerable grading outside of the old track. Upon this work were several gangs of men under foremen,-- at least two; one under the charge of Mahoney, (not a very large gang,) the other, near Gladstone, under the charge of Murdock, in which gang the plaintiff worked. The work to be performed by Murdock's gang near Gladstone was to make a cut through a hill, and fill up several hundred foot of low ground, partially marshy; and the manner of doing this work was by extending, as fast as the excavation was made, trestles, and filling in these trestles according to their height, and thus making the grade continuous. The plaintiff was employed on the work about the 2d of April, 1888. I might say that in doing this work the defendants under Murdock had men who worked in a pit, men who worked on the dump, and a man by the name of Johnson who was assigned to frame the bents of the trestle-work which was to be put up, and erect it, and who, with the aid of other laborers, was to place stringers of different length upon these bents; that upon this temporary trestle-work, what is called a 'Petler' car railroad track was to be constructed, in order to bring out on it the cars, each of which contained about a cubic yard of dirt, excavated from the cut. The plaintiff claims that he was injured by the negligence of Murdock, who represented the company, in setting him to work upon an insecure and unsafe structure, (this trestle,) the erection of which Murdock had intrusted to Johnson, an employe; that Johnson was an incompetent person for the work; and that he is entitled to recover for the injuries sustained by reason of that negligence. The defendants deny that there was any negligence on their part; deny that Mr. Murdock, if the injuries resulted from his negligence, was a representative,--a vice-principal; also deny that Johnson was an incompetent person within their knowledge; and the defense urged is that, if there was any negligence, and the plaintiff was injured, it was either the negligence of himself or of his co-employes working with him.

The issues as presented by the pleadings, affirming and denying the facts, as I have stated to you, are to be determined upon the evidence which has been introduced tending to support the several claims, and the law as I deem it proper to give you. You will thus see, gentlemen, that negligence is the gist of this action, and it may not be improper for me at this time to indicate to you what is negligence,-- what is legal negligence. Negligence is defined to be the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the particular situation, or doing what such a person, under the existing circumstances, would not have done. That is the definition which commends itself to most courts as being concise and satisfactory. Now, this negligence being alleged, the burden of proof is upon the plaintiff, by the preponderance of the evidence, to satisfy you that there was negligence on the part of the defendants, or any one who represented them. This negligence cannot be presumed; it must be affirmatively proven, and it is to be determined by you upon the preponderance of all the evidence. It is not sufficient that the plaintiff proves that he has sustained damage by reason of some omission of the defendants; he must also prove that the defendants in such omission violated a legal duty or obligation which they owed the plaintiff by reason of the relation established between them of employer and employe. The defendants are not the insurers of the safety of the plaintiff. They do not guaranty absolutely his safety, and it is necessary for the plaintiff to establish by evidence facts and circumstances from which it may fairly be inferred that his injury resulted from the want of some precaution which the defendants might and ought to have resorted to; and, in addition, the plaintiff should also show with reasonable certainty what particular precaution should have been taken by the defendants. To prove his case, so as to entitle the plaintiff to recover, he must satisfy you by the preponderance of evidence--First, of defendants' negligence in failing to perform some duty which they owed him; second, that the defendants' negligence was the proximate cause of the injury which he sustained; and you have then what may be called, third, the question of the incompetency of Johnson, who, it is claimed, was a fellow-servant, and was, to defendants' knowledge, incompetent for the discharge of the work which he was set to in connection with the plaintiff; and, if those points are resolved in favor of the plaintiff, then another question will arise, to which I will call your attention hereafter. Now, what is the proximate cause? For the plaintiff must prove that if he was injured, as claimed, the negligence of the defendants was the proximate cause of the injury. The proximate cause of an injury is that cause which immediately precedes and directly produces the injury, without which the injury would not have occurred; and it is claimed here that this injury was the natural sequence of the negligence of the defendants, without which it would not have occurred.

This raises a question which it is necessary for me to instruct you upon, and that is, the duties of the employer (in this case the employers) and the duties of the plaintiff. The law imposes upon the defendants the duty to use ordinary care to select and retain competent servants or co-employes with the plaintiff, and not to subject him to the negligence of incompetent fellow-workmen; and also to exercise ordinary care to furnish a reasonably safe place for plaintiff to do his work, and a reasonably safe structure upon which plaintiff was required to go to do his work, such as is reasonably calculated to insure safety when doing his work also to use ordinary diligence to see that the place where the plaintiff's work called him was in such condition as, from the nature of the work and of plaintiff's employment, he had a right to expect it would be kept; for the plaintiff had a right to assume that all reasonable attention would be given by the defendants to his safety, so that he would not be carelessly and needlessly exposed to risks which might be avoided by the exercise of ordinary care and caution. I say 'ordinary care,' and it is necessary for me to define what is meant by ordinary care. Ordinary care is defined to be that amount of care which an ordinarily prudent person would exercise under the same circumstances; that is, such care as, taking into consideration all the exigencies of the particular service, ought reasonably to be observed; and the claim here, you will recollect, gentlemen, is that this structure which has been exhibited to...