Lundquist v. Duluth St. Ry. Co.

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: START
• Citation: 67 N.W. 1006,65 Minn. 387
• Decision Date: 03 July 1896
• Parties: LUNDQUIST v DULUTH ST. RY. CO.

65 Minn. 387
67 N.W. 1006

LUNDQUIST
v
DULUTH ST. RY. CO.

Supreme Court of Minnesota.

July 3, 1896.

[67 N.W. 1006]

The defendant, a street-railway company, required by its rules that its employés in charge

[67 N.W. 1007]

of its cars should give timely warning, by proper signals, to its employés engaged in track repairing, of the approach of its cars. The plaintiff in reliance on such rules, and while at work repairing the track of the defendant, as its employé, was struck and injured by a car, by the failure of the motorman to give such signals, and by his running the car at a rate of speed prohibited by law. Held, that the plaintiff and the motorman were fellow servants, and that the defendant is not liable to the plaintiff for his injuries resulting from the negligence of the motorman.

Appeal from district court, St. Louis county; Page Morris, Judge.

Action by Gust Lundquist against the Duluth Street-Railway Company. Case dismissed. From an order denying a motion for new trial, plaintiff appeals. Affirmed.

John Jenswold, Jr., for appellant.

Billson, Congdon & Dickinson, for respondent.

START, C. J.

The defendant is a street-railway corporation, and operates, with others, a double-track street-railway line upon Superior street, in the city of Duluth. On July 10, 1894, the plaintiff, while at work as the servant of the defendant repairing its tracks on such street, was struck and injured by one of its cars which was then being operated along its tracks. He brought this action to recover damages for such injury, alleging in his complaint that it was due to the defendant's negligence. At the trial, the defendant, upon the pleadings and certain admissions made by the plaintiff, moved the court to dismiss the case, on the ground that the negligence of which plaintiff complained was that of the motorman, his fellow servant. The motion was granted, and plaintiff appealed from an order denying his motion for a new trial.

The short facts of the case, as disclosed by the complaint and the admissions at the trial, are these: The plaintiff was one of a crew of men employed by the defendant, who were engaged in repairing the tracks, by taking up and relaying the pavement between the rails over which the defendant's street cars operated by electric power passed frequently at irregular intervals. In order to make the place a reasonably safe one for the men thus employed, the defendant adopted a rule whereby it required those in charge of its cars to give timely warning of their approach to the crew, and it was the custom to so do. The plaintiff pursued his work in reliance upon this rule and custom and a due observance of them by the defendant, and while so engaged, and without notice of the approach of the car which struck him, this car approached the place where the plaintiff was at work at the rate of 10 miles an hour, and the motorman in charge thereof failed to make any effort to slacken its speed, and negligently failed to give any signal or warning of its approach. The charter of the defendant provides that no car shall be run within the limits of the city at a greater rate of speed than six miles an hour. The principal question presented by these facts for our...