O'Neill v. Great N. Ry. Co.

• Decision Date: 28 May 1900
• Citation: 80 Minn. 27,82 N.W. 1086
• Parties: O'NEILL v. GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

80 Minn. 27

82 N.W. 1086

O'NEILL

v.GREAT NORTHERN RY. CO.

Supreme Court of Minnesota.

May 28, 1900.

Appeal from district court, Polk county; William Watts, Judge.

Action by Daniel O'Neill against the Great Northern Railway Company. Verdict for plaintiff. Motion for new trial denied on reduction of verdict, and defendant appeals. Reversed.

Syllabus by the Court

1. Where a servant is injured, being caught by a bolt which remains in a timber in the work of tearing away a portion of a bridge, he assumes the danger of the negligence of his fellow servants, as well as the apparent and probable risks of the service in which he is engaged.

2. The road master of a railroad company, directing such work, as in this case, is not the vice principal of the employer to the extent that his omission to give a particular warning of a detail thereof which portends danger would render the master liable for his omissions in that respect. C. Wellington, Wm. R. Begg, and A. C. Wilkinson, for appellant.

H. Steenerson and W. E. Rowe, for respondent.

LOVELY, J.

Action for injuries sustained by plaintiff while working as a common laborer on defendant's road. Plaintiff had a verdict. Upon motion for a new trial the same was denied, conditioned upon the reduction of the recovery, to which he consented. Thereupon defendant appeals to this court.

At a place where defendant's road crossed a ravine on a trestle, the same was filled in by substituting an embankment of earth to support the track in place of the trestle. This undertaking seems to have been carried out as a part of the work of surfacing a considerable portion of the road, wherein a gang of 35 men were working under the directions of defendant's road master. After the trestle had been filled in very nearly to the surface of the track, some 20 men of the gang were detached from the rest of the crew, and required to go upon the embankment to remove and throw the stringers upon which the ties rested over the same, evidently to make room for a further fill, surfacing other ties, and a new track. In the original construction of the trestle the ties rested upon the stringers, which were 40 feet in length, running lengthwise, and resting upon cross timbers beneath. Upon these stringers the ties had been laid transversely. At regular intervals long iron bolts or spikes were driven through the ties and stringers, extending into the timbers beneath, thereby holding secure in combination the ties, stringers, and timbers. The track had been pushed to one side, the bolts were drawn, when the stringers would be moved to the edge of the embankment, and either thrown or allowed to roll down the same. It is claimed by the plaintiff that jackscrews were used to withdraw the bolts from the stringers and timbers into which they extended, and that he was engaged in placing the jackscrews, but had nothing to do with the work of drawing the bolts. It also appears that all the bolts, some 40 in number, had been drawn, except one at the end of one of the stringers, when, by order of the road master, plaintiff was called to take hold of this stringer at the place where there was an undrawn bolt, when he, with a number of the other men, were to roll it over the embankment; and in obeying this direction he sustained the injuries of which he complains. It appears that the upper end of the bolt protruded some inches from the surface of the stringer; and while the plaintiff was at the place where this undrawn bolt was, and in attempting, with the other men, to turn it over, he was caught by the protruding end, and in the usual movements that followed in moving the stringer was, in consequence, thrown with some violence down the embankment. The case was submitted to the jury solely upon the question whether the defendant's road master, Hess, was a vice principal of the defendant (without defining the character of that relation), and was negligent in not giving to the plaintiff a particular warning of the fact that the bolt in question had not been withdrawn, and was liable to injure him. It seems to have been claimed by counsel for plaintiff at the trial that it was the duty of the road master to have given him warning of the precise danger which was liable to and did cause the accident. The road master and a foreman who was present both stated that a general warning to look out for these bolts had been given to all the men at work on the embankment. Conceding that the jury had a right to disregard this testimony, the only evidence remaining to show that no warning of danger was given is that of the plaintiff himself in answer to a question of his counsel, ‘Did you hear him [Hess] say anything about looking out for...