Madden v. Minneapolis & St. L. Ry. Co.

• Decision Date: 18 July 1884
• Citation: 20 N.W. 317,32 Minn. 303
• Parties: MADDEN v MINNEAPOLIS & ST. L. RY. CO.
• Court: Minnesota Supreme Court

32 Minn. 303

20 N.W. 317

MADDENvMINNEAPOLIS & ST. L. RY. CO.

Supreme Court of Minnesota.

Filed July 18, 1884.

Appeal from an order of the district court, Waseca county, denying motion to vacate verdict and give new trial.

Lovely & Morgan, for respondent, Thomas E. Madden.

J. D. Springer, Collester Bros., and Lewis & Leslie, for appellant, Minneapolis & St. L. Ry. Co.

GILFILLAN, C. J.

Action for personal injuries sustained by plaintiff by the running off from defendant's track of a box car, on which he was in its service as a brakeman. That the track was bad defendant does not deny. Indeed, it appears to have endeavored at the trial to show the track in worse condition than as shown by the evidence on the part of the plaintiff; its theory as presented here, and apparently as presented in the court below, being that the condition of the track was so bad that the plaintiff must have known the danger to which he was exposed by continuing in the employment. That the injury was caused by the unsafe condition of the track was shown clearly enough. It is not claimed that defendant ever gave plaintiff actual notice of its unsafe condition; nor is it claimed that it had used proper care to have the track safe, except that, having allowed it to fall into bad condition, the defendant was then engaged in extensively repairing and putting the track in safe condition by resurfacing the bed and taking up the old ties and rails, and replacing them with new ties and new steel rails. A gravel train on which plaintiff served as brakeman was loaded with gravel at a gravel-pit about four miles south of Waseca, and was drawn south to a point near New Richland about 17 miles from the gravel-pit, and there the gravel was unloaded by the side of the track wherever needed for the purpose of resurfacing, and then the train would return to the pit to be reloaded. When the train would return to the pit at night the gravel cars were left there, and the locomotive, with a box car on which plaintiff served as brakeman, brought the workmen into Waseca for the night. It was while thus coming from the pit to Waseca for the night that the casualty occurred.

We will not attempt to set forth the language of the court below in its instructions to the jury. The propositions touching the rights and duties of the parties contained in it are, in substance, these: First, the plaintiff, by continuing in the employment, assumed the reasonable ordinary risks of the occupation upon which he entered,-that of brakeman upon a gravel train repairing the road of the defendant,-and if his injuries resulted from such risks he cannot recover; second, that it was the duty of the defendant to furnish plaintiff in his employment a reasonably safe and suitable road over which to travel; third, but that if he knew or had competent opportunity to learn the defects and imperfections in the track, and the negligence on the part of the defendant, and still continued in the employment, he cannot recover.

On the first and third of these propositions no point is made; but upon the portions of the charge containing the second, the defendant (having saved the objection by its first, second, and sixth exceptions to the general charge, and its exception to plaintiff's first request) makes the principal question in the case. The objection made to it is that the rule which it states is not applicable. That it is the duty of a master to use reasonable care and skill to furnish his servants safe and suitable instruments and means to perform the service in which they are employed, is not denied by the defendant. But it is claimed that it does not apply to the safety or condition of a thing which the servant is employed to repair. It is argued in effect that where servants are employed to put a thing in safe condition and good repair, it would be inconsistent and absurd to require of the master to have it in safe condition and good repair for the purpose of such employment, and where the servant has nothing to do with the thing but to repair it the argument is undeniable. Such, however, is not exactly this case. The defendant was...