Lundquist v. Duluth Street Ry. Co., Nos. 9971 - (206).

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: Start
• Citation: 65 Minn. 387
• Parties: GUST LUNDQUIST v. DULUTH STREET RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL&gt
• Decision Date: 03 July 1896
• Docket Number: Nos. 9971 - (206).

65 Minn. 387 GUST LUNDQUIST
v.
DULUTH STREET RAILWAY COMPANY.¹ Nos. 9971 - (206). Supreme Court of Minnesota. July 3, 1896.

Page 388

Appeal by plaintiff from an order of the district court for St. Louis county, Morris, J., denying a motion for a new trial. Affirmed.

Jno. Jenswold, Jr., for appellant.

Billson, Congdon & Dickinson, for respondent.

START, C. J.

The defendant is a street-railway corporation, and operates 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 that 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 he was so engaged, and without notice of the approach of the car which struck him, this car approached, at the rate of ten miles an hour, the place where the plaintiff was at work, 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

Page 389

our decision is whether the negligence of the motorman was that of a fellow servant or a vice principal.

The provisions of Laws 1887, c. 13,² modifying the law as to injuries sustained by one servant by the negligence of his fellow servant in cases of railway companies, have no application to the defendant street-railway company. Funk v. St. Paul City Ry. Co., 61 Minn. 435, 63 N. W. 1099.

Counsel for the plaintiff claims that it was the defendant's duty to furnish to plaintiff a reasonably safe place in which to work, and, as a means of making the place in question safe, it was necessary to give him due warning of the approach of its cars, and, defendant having made a rule requiring the motorman to give such warning, his failure to do so was the negligence of the defendant, and not of a...