Marshall v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 17 December 1915
• Docket Number: 19,464 - (121)
• Citation: 155 N.W. 208,131 Minn. 392
• Parties: PETER MARSHALL v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Minnesota Supreme Court

155 N.W. 208

131 Minn. 392

PETER MARSHALL v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Nos. 19,464 - (121)

Supreme Court of Minnesota

December 17, 1915

Action in the district court for Waseca county to recover $3,000 for personal injury received while in the employ of defendant. After the appeal reported in 127 Minn. 244, 149 N.W. 296, the case was tried before Childress, J., who when plaintiff rested denied defendant's motion to dismiss the action and a jury which returned a verdict for $2,000. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed and judgment for defendant ordered.

SYLLABUS

Master and servant -- assumption of risk -- proximate cause -- res judicata.

Plaintiff was one of a crew of men engaged in removing defective piling from under a bridge in order to replace it with sound timbers. The piles were sawed off at the ground, worked loose from the drift bolts that held them at the top, and allowed to fall to the ground. While plaintiff was attempting to loosen one of the piles from the drift bolt that held it, it suddenly came loose, fell and injured him. The reason why the pile came loose from the drift bolt before it was expected to, was that it was cracked and rotten at the top where the bolt entered. Plaintiff knew that the piles were rotten and unsafe for use, and that they were being removed for that reason. He did not know that the particular pile which injured him was rotten at the top. It is held:

(1) Defendant did not owe plaintiff the duty to warn him of the particular defect in this pile that caused it to fall before he expected it. Plaintiff assumed the risk of this defect and is precluded from recovering for an injury caused thereby.

(2) Conceding that defendant did not employ a sufficient number of men to do the work, it does not appear that this was the proximate cause of the accident, and it conclusively appears that plaintiff assumed this risk.

(3) Under the Federal Employer's Liability Act assumption of risk is still a defense except in certain cases specified in the act, and the present case is not within the exceptions.

(4) The decision on a former appeal in this case reversed an order refusing a new trial after a verdict for plaintiff, but held that it did not conclusively appear that plaintiff had no cause of action, and that the circumstances did not require that judgment be directed notwithstanding the verdict. In view of the rule that guides this court in refusing judgment notwithstanding the verdict when it appears probable that plaintiff has a meritorious cause of action, though the record before the court shows no case, it is held that the former decision is not res judicata on this appeal.

Edward C. Stringer, McNeil V. Seymour and Edward S. Stringer, for appellant.

Moonan & Moonan, for respondent.

OPINION

BUNN, J.

A former appeal in this case from an order denying defendant's alternative motion for judgment or a new trial, resulted in a reversal of the order refusing a new trial. The decision was placed upon the ground that there was no evidence tending to prove the existence of a custom to give warning of the danger, which was the sole ground of negligence submitted to the jury as a basis for recovery. We said, however, that it did not conclusively appear that plaintiff had no cause of action, and that the circumstances did not require that judgment be directed notwithstanding the verdict. Marshall v. Chicago, R.I. & Pac. Ry. Co. 127 Minn. 244, 149 N.W. 296.

On the new trial the charges of negligence relied on by plaintiff, and submitted to the jury by the trial court, were: (1) The failure of defendant to instruct or warn plaintiff of the danger; (2) employing an insufficient number of men in doing the work. The verdict was in favor of plaintiff for $2,000. The trial court denied defendant's alternative motion, and it appealed from this order.

The first contention of defendant on this appeal, as it was on the former appeal, is that judgment notwithstanding the verdict should have been ordered, because it conclusively appeared that there was no actionable negligence on the part of defendant, and that plaintiff assumed the risk. Except that it appeared on this trial that the case was within the Federal Employer's Liability Act, there is no material difference in the evidence on the two trials. In the opinion on the former appeal the facts are stated as follows:

"At the time of the accident, a bridge crew of which plaintiff was a member, were engaged in removing from a trestle bridge a bent or row of piling which had become decayed to such an extent that it was to be replaced by new material. In constructing the bridge a heavy timber had been placed across the top of the bent or row of piling as a cap, and had been fastened to the piling by drift bolts driven through the cap and into the top of each pile near its center. In removing the piles, the crew cut them off eight or ten feet below the cap timber, pushed or pulled the lower end of the upper piece free from the lower piece which was embedded in the ground, and then worked the upper piece loose from the drift bolt which held it to the cap timber. At all times prior to the accident, the upper piece, after it had been pulled free from the lower piece, had been held suspended by the drift bolt, which fastened it to the cap timber, until the men by twisting it and moving it back and forth worked it loose from such bolt. At the time of the accident plaintiff, unassisted, pulled the upper piece of one of the piles free from the lower piece, and it dropped down upon him dislocating his ankle. Subsequent examination disclosed that the wood around the drift bolt was rotten and the top of the pile cracked or split."

Additional facts material on the present appeal to the questions of negligence and assumption of risk, are these:

The piles were sawed off close to the ground, and, before attempting to work a pile loose from the drift bolt, it was trimmed at the base with the axe to give it more play, it was then lifted from the piece that remained in the ground, and twisted and moved back and forth until it worked loose from the bolt and fell to the ground. Plaintiff had been a member of this bridge crew for some six months before May 27, 1913 the day of the accident, and was an experienced man and knew that the piling was being removed because it had become rotten and was considered unsafe as a support for the bridge. His experience in taking out defective piling, however, dated from the time the frost went out in the spring of that year. His testimony was that the gang foreman told him to do the work of loosening the piles after they had been sawed off, and to do it alone; that the foreman said nothing about the drift bolts holding or about any particular defects in this pile or the others; that he, plaintiff, had loosened one pile from its drift bolt before he attempted the one which caused the accident; that he did not look up to the top of the pile, though it was but two or three feet above his head, and though the cracks in it could be plainly seen had be looked. The foreman had made an...