Manson v. Great Northern Railway Company
| Decision Date | 26 October 1915 |
| Citation | 155 N.W. 32,31 N.D. 643 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of ward County; Leighton, J.
Reversed.
Judgment of the trial court reversed and action dismissed.
Dudley L. Nash and Murphy & Toner, for appellant.
There was no negligence shown on the part of defendant. The injury was the result of an accident, or was due to the careless exercise of functions of control by the plaintiff. Hunter v. Kansas City & M. R. & Bridge Co. 29 C. C. A. 206, 54 U.S. App. 653, 85 F. 379; Hamilton v. Chicago, R. I. & P R. Co. 93 Iowa 46, 61 N.W. 415; Cameron v. Great Northern R. Co. 8 N.D. 618, 80 N.W. 885, 7 Am. Neg. Rep 146; Dewey v. Chicago & N.W. R. Co. 31 Iowa 373; Kenney v. Central R. Co. 61 Ga. 590; Illinois C R. Co. v. Modglin, 85 Ill. 481; St. Louis, A. & T. R. Co. v. Denny, 5 Tex. Civ. App. 359, 24 S.W. 317; Brunswick & W. R. Co. v. Smith, 97 Ga. 777, 25 S.E. 759; Birmingham Furnace & Mfg. Co. v. Gross, 97 Ala. 220, 12 So. 36; Taylor v. Baldwin, 78 Cal. 517, 21 P. 124; McDermott v. Atchison, T. & S. F. R. Co. 56 Kan. 319, 43 P. 248; Hudson v. Charleston, C. & C. R. Co. 55 F. 248; Berlick v. Ashland Sulphite & Fiber Co. 93 Wis. 437, 67 N.W. 712; Gorham v. Kansas City & S. R. Co. 113 Mo. 408, 20 S.W. 1060; Lane v. Central Iowa R. Co. 69 Iowa 443, 29 N.W. 419; Chicago & N.W. R. Co. v. Snyder, 117 Ill. 376, 7 N.E. 604; Gulf, C. & S. F. R. Co. v. Silliphant, 70 Tex. 623, 8 S.W. 673; Gulf, C. & S. F. R. Co. v. Hubert, Tex. Civ. App. , 54 S.W. 1074.
The plaintiff must be held, conclusively and as a matter of law, to have assumed any risk incident to so carrying his men on the hand car. Kelly v. Chicago, M. & St. P. R. Co. 53 Wis. 74, 9 N.W. 816; Bradshaw v. Louisville & N. R. Co. 14 Ky. L. Rep. 688, 21 S.W. 346; Carr v. North River Constr. Co. 48 Hun, 266; Kennedy v. Pennsylvania R. Co. 1 Monaghan (Pa.) 271, 17 A. 7; Lake Shore & M. S. R. Co. v. Knittal, 33 Ohio St. 468; Bengston v. Chicago, St. P. M. & O. R. Co. 47 Minn. 486, 50 N.W. 531; Weed v. Chicago, St. P. M. & O. R. Co. 5 Neb. (Unof.) 623, 99 N.W. 827; Southern P. Co. v. Ryan, Tex. Civ. App. , 29 S.W. 527; Norton v. Louisville & N. R. Co. 16 Ky. L. Rep. 846, 30 S.W. 599; Sliney v. Duluth & W. R. Co. 46 Minn. 384, 49 N.W. 187; Berlick v. Ashland Sulphite & Fiber Co. 93 Wis. 437, 67 N.W. 712; Beckman v. Consolidated Coal Co. 90 Iowa 252, 57 N.W. 889.
Plaintiff would not have been disobeying the order of his master had he made several trips in conveying his men, were there not room for them all on the car. He did not request more cars. In any event, the order of the master is wholly immaterial on the question of the assumption of the risk. Bradshaw v. Louisville & N. R. Co. 14 Ky. L. Rep. 688, 21 S.W. 346; Labatt, Mast. & S. § 438; Ferren v. Old Colony R. Co. 143 Mass. 197, 9 N.E. 608, 15 Am. Neg. Cas. 481; Kean v. Detroit Copper & Brass Rolling Mills, 66 Mich. 277, 11 Am. St. Rep. 492, 33 N.W. 395; Hoth v. Peters, 55 Wis. 405, 13 N.W. 219; Linch v. Sagamore Mfg. Co. 143 Mass. 206, 9 N.E. 728; Showalter v. Fairbanks, M. & Co. 88 Wis. 376, 60 N.W. 257; Burlington & C. R. Co. v. Liehe, 17 Colo. 290, 29 P. 175.
Plaintiff was guilty of contributory negligence in that he was not in his proper place on the car, but, under the rules and custom, he was in a place where he had no right to be at the time of the accident. Southern P. Co. v. Ryan, Tex. Civ. App. , 29 S.W. 527.
If the car was in fact insufficient, the plaintiff knew it, and he also knew the danger, and, having elected to ride and to operate the car, he assumed the risk of injury. The Federal employers' liability act does not change the rule. Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, 34 S.Ct. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834.
Francis J. Murphy, for respondent.
This case is within the Federal employers' liability act. State courts of general jurisdiction not only may but must enforce a right arising under such act. Act of April 22, 1908, 35 Stat. at L. 65, chap. 149; Act of April 5, 1910, 36 Stat. at L. 291, chap. 143; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U.S. 1, 56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 S.Ct. 169, 1 N. C. C. A. 875; Oliver v. Northern P. R. Co. 196 F. 432; Michigan C. R. Co. v. Vreeland, 227 U.S. 59, 57 L. ed. 417, 33 S.Ct. 192, Ann. Cas. 1914C, 176; Pederson v. Delaware, L. & W. R. Co. 229 U.S. 146, 57 L. ed. 1125, 33 S.Ct. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779; Southern R. Co. v. Howerton, Ind.App. , 101 N.E. 121; Zikos v. Oregon R. & Nav. Co. 179 F. 893; Horton v. Oregon-Washington R. & Nav. Co. 72 Wash. 503, 47 L.R.A.(N.S.) 8, 130 P. 897.
Defendant's negligence in not furnishing plaintiff with a sufficient number of cars with which to do the work assigned was the proximate cause of the injury. Milwaukee & St. P. R. Co. v. Kellogg, 94 U.S. 469, 474, 24 L. ed. 256, 259; Hayes v. Michigan C. R. Co. 111 U.S. 228, 28 L. ed. 410, 4 S.Ct. 369.
The defense of contributory negligence set up by defendant in its answer is abolished by the Federal employers' liability act, and is held to be solely a question for the jury. Fogarty v. Northern P. R. Co. 74 Wash. 397, L.R.A. , , 133 P. 609; McDonald v. Railway Transfer Co. 121 Minn. 273, 141 N.W. 177; Norfolk & W. R. Co. v. Earnest, 229 U.S. 114, 57 L. ed. 1096, 33 S.Ct. 654, Ann. Cas. 1914C, 172; Grand Trunk Western R. Co. v. Lindsay, 120 C. C. A. 166, 201 F. 836.
The doctrine of the assumption of the risk is also abolished by the act. Philadelphia, B. & W. R. Co. v. Tucker, 35 App. D. C. 123, L.R.A.1915C, 39; Wright v. Yazoo & M. Valley R. Co. 197 F. 94; Southern R. Co. v. Howerton, Ind.App. , 101 N.E. 121; Sandidge v. Atchison, T. & S. F. R. Co. 113 C. C. A. 653, 193 F. 867; Malloy v. Northern P. R. Co. 151 F. 1019.
The question whether continued working in circumstances of danger with knowledge thereof amounts to an assumption of risk is a question of fact, that must not be withdrawn from the jury. Beven, Neg. 1908, 3d ed. p. 620; New York, N. H. & H. R. Co. v. Vizvari, L.R.A.1915C, 14, 126 C. C. A. 632, 210 F. 118; Labatt, Mast. & S. 2586.
In June, 1911, plaintiff was section boss for defendant, stationed at Cedar, Minnesota. He had had about four years' experience, and had under him at the time thirteen men, having had them for about ten or twelve days. He had one hand car. He testifies that he received a letter from his road boss directing him to take out these men and meet the adjoining section crew upon the following day. In the morning he loaded his crew upon the hand car and went to the place designated. What happened upon the return trip in the evening is related by himself:
He further testifies:
Q. Now this order you got from your road master,--did he say anything to you with reference to the number of men you were to take?
A. Yes, sir.
Q. How many men did he tell you to take?
A. All my men.
. . . .
Q. You were not running any faster than you ordinarily ran?
A. I don't remember.
. . . .
Q. How large a hand car was it?
A. I don't know.
Q. Haven't any idea?
A. Just a small car.
Q. What is the number of it?
A. I don't remember.
Q. Isn't it a fact, that that car is about 4 feet, 8 inches wide, and 6 feet long, is that about the size of it?
A. I don't know, I cannot tell.
. . . .
Q. Which hand did you use to grab this other man with?
A. With left hand.
Q. Where did you grab him?
A. I grabbed him from his body.
Q. Where?
A. From his neck somewhere I grabbed him.
Q. Caught him in front?
A. Yes, sir.
Q. By the throat?
A. I grabbed him somewhere, I don't remember where. I grabbed him to protect him from falling.
. . . .
Q. How did you come to fall?
A. As I grabbed for the man to protect the man from falling, the pumping which was close to me--I could not stand myself in the same way, and I grabbed him and I went pretty close to the handle, and the pump handle as it was running struck me over here and threw me in the middle of the track.
Q. If you had not attempted to grab the other fellow you would not have fallen off, would you?
A. No, sir.
Q. If you had not let go of the handle bar you would not have fallen off, is that right?
A. No, sir.
Q. You mean to say that you would have fallen off whether you hung on to the handle bar or not, is that what you mean to say?
A. If I would not grab him I would not fall off.
There is no evidence that plaintiff complained to the railroad company about the lack of hand cars. Plaintiff in his brief states his position as follows: ...
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