Miller v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 28 September 1923
• Citation: 195 N.W. 33,50 N.D. 206
• Court: North Dakota Supreme Court
• Parties: MILLER v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

50 N.D. 206

195 N.W. 33

MILLER

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

July 26, 1923.

Rehearing Denied Sept. 28, 1923.

Syllabus by the Court.

In an action for personal injuries brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), it is held that negligence and proximate cause were questions for the jury.

Additional Syllabus by Editorial Staff.

Negligence is the basis of liability under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and there can be no recovery thereunder in the absence of negligence on the part of the railway company or some of its employees.

Under federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), negligence and proximate cause become questions of law only when the facts are undisputed, and reasonable men in the exercise of reason and judgment can draw but one inference from them.

Appeal from District Court, Stutsman County; Coffey, Judge.

Action by Charles Miller against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.S. E. Ellsworth, of Jamestown, and John E. Palmer, of Minneapolis, Minn., for appellant.

Knauf & Knauf, of Jamestown, for respondent.

CHRISTIANSON, J.

This is an action for personal injuries, brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). It was tried to a jury, and a verdict returned in favor of the plaintiff for $500. Defendant moved for judgment notwithstandingthe verdict, or for a new trial. The motion was denied, and defendant has appealed from the judgment.

The sole question presented on this appeal is the sufficiency of the evidence to sustain the verdict. In other words, it is contended by the defendant that the court erred in denying its motion for a directed verdict and its motion for judgment, notwithstanding the verdict.

The complaint alleges:

“That on May 11, 1921, this plaintiff was engaged by and for said defendant as a section laborer at Kensal, N. D., with the section crew which then and there consisted of a section foreman and another laboring man in charge of the said rails, track, ties, and roadbed, and right of way of said defendant for a space of over five miles in a northwesterly direction from Kensal in Stutsman county, and that the said defendant was in duty bound to furnish good and sufficient tools and equipment with which to carry on and do the work of repair of said rails and track, of ties under said track, and the roadbed. That on May 11, 1921, this plaintiff was so engaged with the section foreman, and the said defendant furnished therefor two picks and other equipment and tools, that one of said pick's handles had negligently been permitted to become old and worn and rotted and that while the other of said laborers was using the same in the ordinary manner and way, it broke, owing to its negligent and defective condition which had, unbeknown to this plaintiff, existed for many weeks, so that when said laborer struck the pick in the usual manner in an old decayed tie, the handle broke, and thereupon the section foreman in charge of said section crew instructed said other laborer to aid and assist this plaintiff in pulling out old rotten ties from underneath said railway rails and track, and that the pick which plaintiff was using was old, badly worn, and dilapidated, and unsafe for the use of two, and which the said foreman instructed plaintiff was good and sufficient for the other laborer and plaintiff to pull upon and work with during the balance of May 11, 1921, and believing him, and relying on his instructions, this plaintiff struck said pick in the end of an old decayed tie lying underneath the rail and track of said defendant at a point about 3 1/2 miles in a northwesterly direction from Kensal, N. D., on said line of railway, plaintiff and the other of said section laborers thereupon both seizing the handle of said pick, as directed by such foreman, dragged, and in drawing it from said roadbed from underneath said rails over and down the side of the embankment to the usual place, the said other laborer negligently pulled on the said handle of said pick, so as to draw it and plaintiff to the sidewise of said roadbed embankment in such a manner as to cause this plaintiff's heel and foot to strike against a loose rock in and on said roadbed and right of way of defendant, causing him to lose his balance and to fall, and said other laborer to negligently pull and cause said tie to strike with great force and weight upon and against plaintiff's foot, angle, and leg, crushing, fracturing, and breaking his ankle, leg, and foot, causing this plaintiff great and permanent injury, suffering and pain in such leg, foot, and ankle, without any negligence on his part, and causing him by reason of the premises herein aforesaid, to suffer damage and loss in the sum of $7,500, and all of which occurred while said plaintiff and defendant were actually engaged in interstate commerce.”

The answer admits that the plaintiff was employed by the defendant as a section laborer on or about the time the injury was sustained; but alleges that the injury was of a slight and temporary character, and denies that such injury was occasioned by any negligence on the part of the defendant or its employees. It also alleges that whatever injury plaintiff sustained was caused solely by his own negligence; and that the injury, if any, was due to risks and hazards knowingly and voluntarily assumed by the plaintiff.

The plaintiff testified:

“I am 49 years of age. In the spring of 1921 I was working for the defendant railway company on the section at Kensal. On the day the accident happened we were taking out old ties and putting in new ones. Mike Davey was our foreman. His son Henry and I were working together. I struck the pick in the tie-we had only one pick, and we went down the bank with the tie, kind of fast, and I met an accident with a rock, and I went over the rock and, of course, as I did, he having hold of the handle brought the force of the tie against my ankle. We were both working with the one pick for the reason that about two or three ties before, if I remember, he (Henry Davey) broke his pick chopping off slivers. He broke the handle on his pick. It was an old decayed handle. If it hadn't been, it would not have broken. After he broke the handle of his pick, we both worked with one pick. We did this because the foreman directed us to do it. Henry Davey, the man working with me, was a young man about 21 or 22 years of age. I went over with the force of the tie. At the time I fell Henry Davey had hold of the pick. The tie struck me right like that (indicating the place where it struck). It pained me then, and pains me to-day. The work we did consisted of raising the track, when there were defective ties, taking out spikes, and pulling out the old ties, and putting in new ones and tamping them.”

On cross-examination plaintiff testified:

“Henry Davey and I were fellow laborers that day, both working under the direction of the same foreman. The accident occurred between 3 and 4 o'clock in the afternoon. We pulled the old ties out with the pick. That is the way it was done. It was a heavy tie. We both pulled on the same pick. If Davey hadn't had hold of the handle I don't believe I would have been hurt. I blame him that way, both of us having hold of that one handle. We were both pulling the tie up to the time I struck the rock. I don't think I would have pulled the tie against my foot if Davey hadn't been there.

Q. Was it all Mr. Davey's fault? A. Why, it was his fault. If he hadn't had hold of the handle at that time, I wouldn't have gotten hurt.

Q. Your pulling, the force you were using, wouldn't have brought the tie against your foot? A. No; it wouldn't, because if a man lost his hold, he would have went over, and the tie would have stopped.

Q. Now, Mr. Miller, after you fell down, and recovered your balance again, and got your foot out of the place, where was Henry Davey; beside you? A. No, sir; he was up on the track, at that time.

Q. He had gone back where Mike Davey was working on the track? A. No one had come down there where I was at all.

Q. Isn't it true, Mr. Miller, that just as soon as you started down the embankment with that tie, pulling that pick-as soon as you started away from the track that Mr. Davey went back to assist his father in putting in the new tie? A. No, sir.

Q. That is true, isn't it? A. After we got the tie down, he went back.

Q. And you want it understood here now that he kept pulling down the side of the embankment, seven or eight feet high, all the time, until you reached the bottom? A. Yes, sir; that is it.

Q. When you recovered your balance, he was back up on the track? A. Yes, sir. * * *

Q. Isn't it true, Mr. Miller, that on the 11th day of June or a month after the accident, that you didn't blame Mr. Henry Davey for this accident in any way? Isn't that true? A. No; I didn't blame Henry Davey. If he hadn't had hold of the pick, I wouldn't have blamed him. But I told him it that way, as I told Mr. Hendershot, if we had two picks I would never got hurt. * * *”

On redirect examination plaintiff testified:

“Q. Now, I don't know if you have made it just plain to the jury as to the pulling out of that tie, and pulling it down the side of the embankment; just explain to the jury whether you went straight down, or whether you shifted to one side or what. A. We started straight down,...