Neal v. N. Pac. R. Co.
| Decision Date | 25 May 1894 |
| Citation | 59 N.W. 312,57 Minn. 365 |
| Parties | NEAL v. NORTHERN PAC. R. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
Defendant had a crew of men, under the direction of a foreman, employed in blasting and quarrying stone along the line of its road, to be used in repairing its roadbed. The blasting of rock frequently broke down the defendant's telegraph poles and wires along its road in the vicinity of the quarry. The plaintiff, a lineman in the employment of defendant, who received his orders from defendant's superintendent of telegraph, was engaged in repairing the telegraph line whenever broken down by the blasting. Any assistance required by him was obtained from the quarry crew, on whom he had a right to call for aid. A telegraph pole having been thrown down by a blast, plaintiff and one of the quarry men descended to the lower side of the railroad embankment to repair it, and, while they were thus engaged, one of the quarry men negligently rolled a rock down the embankment, and injured the plaintiff. Held, that the plaintiff and the quarry crew were fellow servants within the rule which exempts the master from liability for injuries sustained by one servant through the negligence of another.
Appeal from district court, Ramsey county; John W. Willis, Judge.
Action by Thomas G. Neal against the Northern Pacific Railroad Company. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Reversed.
J. H. Mitchell and Tilden R. Selmes, for appellant.
McDonald & Barnard, for respondent.
This action was brought to recover damages for personal injuries caused by the alleged negligence of the defendant. The plaintiff was in the employment of the defendant as telegraph lineman, his duty being to repair defendant's telegraph line at such points as he might be directed. He received his orders from defendant's assistant superintendent of telegraph. On, and for some time prior to, the date of the accident, the defendant had a crew of men, under the direction of a foreman, engaged in blasting and quarrying rock upon the line of its road in the vicinity of Canton, Wash., for the purpose of using the rock in riprapping injured portions of its line at points some distance from the place where the rock was procured. The place is in a mountainous district along a river, the roadbed being excavated out of the side of the mountain, some little distance above the stream, so that on the upper side of the track there was a steep rock cliff, and below the track a steep decline down towards the river. Defendant's telegraph line was constructed 15 or 16 feet below the track, down the embankment. On account of this conformation of the ground, it followed that, when rock was blasted from the cliff on the upper side of the track, detached pieces were thrown across the road down the bank below, which frequently broke down the telegraph poles and lines. After a blast was fired off, it was the duty of the quarrying crew to pile up the loosened and detached rock alongside the track, to be hauled by trains to the place where the rocks were to be used for repairs. This work had been going on for some three weeks, during which time the plaintiff had been engaged in repairing, whenever necessary, the telegraph line when broken down or injured by the blasting. Any assistance required by him in doing this work he obtained from the quarry crew, upon whom he had a right to call for aid. On the day in question he accompanied the quarry crew to the place where this work was being carried on. A blast having been fired off, a quantity of stone was thrown upon the track, while some was hurled down the bank, knocking down the wire and a telegraph pole. The plaintiff, in company with one of the quarry gang, proceeded to repair the wire and pole, while the remainder of the men appear to have been engaged in removing from the track, and piling up, the rock which had been detached by the blast. While plaintiff was thus engaged, a large rock rolled against his leg, so injuring it as to render necessary amputation below the knee. So far there is no conflict whatever in the evidence. The only dispute is as to the manner in which the accident occurred. Plaintiff's claim was that one of the quarry crew pried the rock off the railroad track, and rolled it down the embankment, while defendant's contention was that the rock had been previously thrown down the embankment by the blast, and lodged against the foot of the pole which plaintiff was readjusting, and that it was his own efforts to restore the pole which caused the rock to roll against his leg. Which party was right on this point was a question for the jury. The only legal question in the case is whether, on the facts, the plaintiff and the members of the quarry crew were fellow servants within the rule which exempts the master from liability for injuries sustained by one servant through the negligence of another.
The trial court left this question to the jury. As the facts were undisputed, and showed precisely what the respective duties of the plaintiff and of the quarry crew were, and what relation they bore to each other, the question was one of law, and should have been decided by the court. But if, as a matter of law, the plaintiff and the quarry crew were not fellow servants within the meaning of the rule, the error of the trial court in leaving the question to the jury would not be prejudicial to the defendant. Ever since the “common employment” doctrine was announced in Priestley v. Fowler, 3 Mees. & W. 1, courts and text writers have been attempting to lay down some formula or test by which to determine what servants of a common master are fellow servants within the rule that exempts the master from liability. The books abound in statements that they must be “engaged in the same common pursuit, under the same general control,” or “engaged in the same general business, though it may be in different grades or departments of it,” or “engaged in the same general employment, working to accomplish the same general end, though it may be in different departments or grades of it.” Of course, such definitions are very unsatisfactory, unless we are told what is meant by the expressions “the same common pursuit,” “the same general business,” etc., for upon the meaning to be attached to these terms the entire question depends. A few western states, adopting what is termed the “consociation doctrine,” hold, in substance, that only those are fellow servants, within the rule, who work side by side, performing the same or similar duties....
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