Lyberg v. Northern Pacific R. Co.

• Decision Date: 22 June 1888
• Citation: 39 Minn. 15
• Court: Minnesota Supreme Court
• Parties: AUGUST LYBERG <I>vs.</I> NORTHERN PACIFIC RAILROAD COMPANY.

Page 15

39 Minn. 15

AUGUST LYBERGvs.

NORTHERN PACIFIC RAILROAD COMPANY.

Supreme Court of Minnesota.

June 22, 1888.

Appeal by defendant from an order of the district court for Hennepin county, Hicks, J., presiding, refusing a new trial.

John C. Bullitt, Jr., for appellant.

James O. Pierce and Arctander & Arctander, for respondent.

DICKINSON, J.

The plaintiff was engaged in the service of the defendant in its shops as a blacksmith. In April, one Allen was assigned by the defendant as an assistant or "helper," to work with the plaintiff. In this position it was Allen's duty, among other things, to use a sledge while assisting the plaintiff in his work at the anvil. Allen was found to be incompetent, and for that reason an unsafe fellow-laborer, and the plaintiff gave notice of this to the foreman having general charge of this department, soon after which Allen was removed, and another assistant was put in his place. On the 4th day of May, Allen was again set to work as the plaintiff's helper. On the 6th day of May, as the evidence tended to show, the plaintiff again made complaint to the defendant of this man's incompetency, expressed his fear to work with him, and threatened to leave the service if another helper should not be assigned to him. The foreman then, as was testified, promised to give him another helper, no time when he would do so being designated. No change was made prior to the tenth of that month, when the injury complained of occurred. The plaintiff was then at work upon a piece of hot iron on his anvil, and holding a cold-chisel for the purpose of cutting the iron. Allen, in striking the cold-chisel with his sledge, brought it down upon the edge of the chisel so that the sledge then turned, and struck the sharp edge of the anvil, breaking particles from the latter, which were driven forcibly into the plaintiff's eye, seriously injuring it. The plaintiff's recovery in this action rests upon the incompetency of Allen for such service, and the defendant's knowledge of that fact. On this appeal nothing is urged in opposition to these grounds of recovery; but the defendant relies upon the proposition that, as shown by the plaintiff's testimony and without contradiction, the danger of working with so unskilful a fellow-servant was well known to the plaintiff, and that in remaining in the employment he was himself conclusively chargeable with contributory negligence, so that the verdict of the jury, to whom this matter was submitted, cannot stand. The question is thus presented for our determination whether the danger to be apprehended from continuing to work with Allen was so imminent, and so manifest to the plaintiff, that the court should have declared, without taking the opinion of the jury, that it was opposed to the dictates of ordinary prudence for the plaintiff, under the circumstances, and having in view this promise of the defendant, to have remained in the defendant's service from the 6th until the morning of the 10th of the month.

The...