Nylund v. Duluth & N. W. Ry. Co.
| Decision Date | 31 October 1913 |
| Citation | 143 N.W. 739,123 Minn. 249 |
| Court | Minnesota Supreme Court |
| Parties | NYLUND v. DULUTH & N. W. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, St. Louis County; Homer B. Dibell, Judge.
Action by Frank Nylund, as administrator of August Lehto, against the Duluth & Northwestern Railroad Company. A verdict was directed for defendant, and plaintiff appeals. Affirmed.
Plaintiff's intestate was killed while unloading logs from a flat car. Cars were ‘spotted’ at an unloading place alongside the Cloquet river. The logs were piled lengthwise, two piles on a car. The standards supporting them on the side of the car toward the river were pulled by means of a lever on the land side, and the logs allowed to roll into the river. Three crews, of two men each, were engaged at this work. Deceased was on the river side of a pile of logs, and his partner on the land side at the lever. The accident was caused by his partner pulling the lever while another crew was unloading a contiguous pile of logs. Uniform custom required him to wait until the adjoining crew had finished unloading, so that the man on the river side would have a clear space in which to stand. The cause of the accident was the negligence of this fellow servant.
An employé of a railroad, engaged in unloading logs from cars standing on an unloading track, detached from an engine, is not engaged in employment exposed to ‘railroad hazards,’ and the fellow servant liability act of Minnesota does not apply.
The ‘rule of haste’ has application only when the work in which the employé is engaged is required to be done with unusual haste by reason of its relation to the operation of a railroad, and such haste is an essential element in causing the accident.
The evidence is insufficient to show negligent failure of defendant to discharge any duty devolving upon it to give signals.
If the work is done in the customary manner, the place where deceased was employed is a safe place to work. There was accordingly no negligence on the part of defendant in the matter of furnishing a proper place to work, or of proper direction of the work. John A. Keyes, of Duluth, for appellant.
Howard T. Abbott and Abbott, MacPherran, Lewis & Gilbert, all of Duluth, for respondent.
1. This action is brought to recover damages for the death of August Lehto. Deceased was unloading logs from one of defendant's cars. The logs were loaded lengthwise on flat cars, two piles on each car. They were held in place by upright standards on each side of the car. The mode of unloading was as follows: Cars were ‘spotted’ at an unloading place alongside the Cloquet river. Then the standards on the river side of the car were pulled out and the logs allowed to roll down into the river. The standards were pulled by a lever operated from the land side of the car. The men worked in pairs, one being at the lever on the land side and the other on the river side. There were at this time three crews at work upon this train, which consisted of about 15 cars. Deceased and his partner were at the pile on the upper end of their car; two other men, Houle and Duby, were at the pile on the lower end of the same car; and another crew of two at a car farther down the track. There was a custom that two contiguous piles were not to be unloaded at the same time, and there was some evidence that the men were so instructed; the purpose of this regulation was that there should always be a clear space next to where a crew was engaged. There is some evidence that it was customary for the man operating the lever to call out to his partner before pulling it, and there is also some evidence of a custom that the man on the river side should signal his partner before the lever was to be pulled.
On this occasion deceased and his partner were about to unload their pile of logs. Deceased was standing on the river side and his partner on the land side at the lever. Houle and Duby were still engaged in unloading the adjoining pile, and it was the duty of deceased and his partner to wait until they had finished. But deceased's partner pulled the lever and released the standards while Houle and Duby were still unloading their last log. Deceased had given no signal. There is evidence that his partner called to him before he pulled the lever. When the standards were pulled the logs began to fall. This frightened deceased, and he ran toward the other end of the car, where Houle and Duby were; the last log falling from that end caused deceased to run still farther to get out of the way, and, after running a short distance along the side of the cars, he apparently lost his balance, and fell or jumped into the stream. Logs from the third crew then came upon him and he was drowned. On this evidence the trial court directed a verdict for defendant, and plaintiff appeals.
Defendant railway company contends that deceased was not in its employ, but in the employ of the Cloquet Lumber Company, and that that company, and not the defendant, was in charge of this work. Plaintiff contends that deceased was in the employ of defendant, and that defendant was in charge of the work. The evidence on this point is unsatisfactory, but it perhaps made an issue of fact for the jury. We may assume that plaintiff's contention in this respect is true, for the case must be affirmed on other grounds.
[1] Had deceased's...
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