Olson v. St. Paul, M. & M. Ry. Co.

• Decision Date: 10 January 1888
• Citation: 38 Minn. 117,35 N.W. 866
• Parties: OLSON v ST. PAUL, M. & M. RY. CO.
• Court: Minnesota Supreme Court

38 Minn. 117

35 N.W. 866

OLSONvST. PAUL, M. & M. RY. CO.

Supreme Court of Minnesota.

January 10, 1888.

(Syllabus by the Court.)

The foreman of a gang of section or track men engaged in the discharge of his ordinary duties in the course of his employment is a fellow-servant with them.¹

Where it is the established practice and one of the rules of a railway company to run special or irregular trains at any time, without notice in advance to station agents or section men, who are required to govern themselves accordingly, and it appears from the evidence that an engine with snow-plow is a train of that class, held, that sending out such a train over the road, in a storm, without such notice, was not negligence, but that the risks to track-men attending its use are among those assumed by such employes, if they are informed of the rule, or if, from their observation and knowledge of the practice of the company in respect to running such trains, they knew, or ought to have known, in the exercise of ordinary intelligence and reasonable prudence, that such a train might be expected.²

Upon the evidence in this case, held error for the court to refuse to charge the jury that if the injured employe knew of such usage and practice of the company, he could not recover.

Appeal from district court, Grant county; BAXTER, Judge.

J. W. Reynolds, for Olson, respondent.

W. E. Smith and R. B. Galusha, for St. Paul, M. & M. Ry. Co., appellant.

VANDERBURGH, J.

The plaintiff's intestate was one of a gang of section-men employed by defendant on the line of its road, under the direction of a foreman who had charge of the men on the particular section where he was killed by a snow-plow while engaged with others with a hand car on the track. They appear to have been engaged in their ordinary work under the direction of the foreman, who was present with them, and who was also killed by the same accident. They had been shoveling snow, and were at the time returning to the section-house with the car, in the midst of a severe storm of snow and wind, in consequence of which they did not hear or see the approach of the engine and snow-plow in time to make their escape.

1. The foreman was a fellow-servant with the deceased, and in the discharge of his duties did not represent the master as such, and for his acts or omissions in the discharge of such duties in the course of his employment, the defendant was not liable. Cook v. Railway, 34 Minn. 47, 24 N. W. Rep. 311;Brown v. Railway, 31 Minn. 553,18 N. W. Rep. 834;Brown v. Railroad, 27 Minn. 162,6 N. W. Rep. 484; Fraker v. Railway, 32 Minn. 57, 19 N. W. Rep. 349;Capper v. Railway, 103 Ind. 308, 2 N. E. Rep. 749, and cases cited. We are not now speaking of the duty of the master to make known in some suitable way to the servant the existence of risks not known to him, and which he has not impliedly assumed in his contract of employment. Engine Works v. Randall, 50 Amer. Rep. 801, 100 Ind. 293.

2. The admissions in the reply eliminate from the case all questions of negligence on the part of the company in respect to the running and operation of the engine and snow-plow, and affirm that the usual and proper signals were given on approaching the station, and that “the said engine and snow-plow were run and operated in a careful and prudent manner, and at a proper rate of speed, by defendant's servants then in charge thereof, and that they were personally guilty of no negligence in the premises,” so that the only remaining questions are whether the defendant owed the duty to the section-men to give them special warning of the fact that the snow-plow was sent out over that division of the road, or had failed in its duty to inform the men of its rules permitting wild or extra trains to be run without special notice or warning to the men of their approach and requiring them to govern themselves accordingly.

3. The rules of the company referred to, and which were put in evidence, are as follows: “Rule 66. No notice will be given to station agents of the passage of irregular trains, and they will govern themselves accordingly.” “Rule 70. Track and bridgemen must use the utmost caution at all times, as under the telegraphic system of running trains a train may be expected at any moment. No notice whatever will in any case be given of the passage of extra trains. Foremen will govern themselves accordingly.”

The evidence in the case shows that regular trains run according to schedule time, and that wild, special, or extra trains run at any time, and that an engine and snow-plow is a train of this class, of whose approach no notice is given under the rules and practice of the company. Now, if the deceased and his fellow section-men knew, or from their observation and information about the running of the trains ought, in the exercise of ordinary intelligence and prudence, to have known, that an extra or wild train might come over the road at any moment, without notice, they must be deemed to have assumed this as one of the hazards incident to the employment, (Railway Co. v. Leech, 41 Ohio St. 391; McGrath v. Railroad Co., 18 Amer. & Eng. R. Cas. 6; Railroad Co. v. Wachter, 60 Md. 395;) and we are unable to see why there should be any exception in the case of a snow-plow, or that the act of sending out the snow-plow over the line, in this particular instance, was in itself negligent or wrongful under the rules referred to. There does not seem to be any reason why at that season, and in such a storm, a snow-plow might not with as much reason be expected as any other extra train. The employes of the company are presumed to understand the nature, use, and operation of snow-plows, and that they are liable to be run frequently over the road in the...