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

• Decision Date: 05 March 1909
• Parties: RASE v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.
• Court: Minnesota Supreme Court

107 Minn. 260

120 N.W. 360

RASE

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

Supreme Court of Minnesota.

March 5, 1909.

Appeal from District Court, Ramsey County; William Louis Kelly, Judge.

Action by Tom Rase against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Verdict for defendant. From an order refusing to set the same aside and grant a new trial, plaintiff appeals. Reversed.

Syllabus by the Court

Plaintiff, a coal shoveler at an elevator, also in charge of an engine operating it, went into a small engine house to remedy something ‘which did not sound right,’ stumbled and fell, he contended, on an unguarded belt and revolving pulley, and was hurt. In an action to recover damages it is held, the facts brought the case within the local factory act (section 1813, Rev. Laws 1905), ‘which was intended to protect from personal injury the workman or employé in any shop, mill, or factory by reason of dangerous machinery therein, and which must be construed to give effect to such wise and humane purposes.’ Christianson v. N. W. Compo Board Co., 83 Minn. 25, 85 N. W. 826,85 Am. St. Rep. 440, followed and applied.

Evidence designed to show that it was practicable and feasible to have so guarded this machinery as to have protected the servant was admissible.

The four walls of the engine house did not, as to plaintiff, constitute a compliance with the statute.

The burden of proof is on the person injured to show by a fair preponderance of evidence only that the alleged negligence was the proximate cause of the injury complained of. Where a cause is shown which might produce a given accident, and the fact appears that an accident of that particular character did occur, it may be a warrantable inference, in absence of showing of other cause, that the one known was the operative agency in bringing about such result.

Whether this defendant was negligent, and whether the failure to guard the pulley and belt was the proximate cause of this plaintiff's injury, were questions for the jury.

‘Assumption of risk’ and ‘contributory negligence’ are separate and distinct defenses. Both are peculiar to an action on the tort and are usually implied from conduct. Assumption of risk rests upon intelligent acquiescence with knowledge of the danger and appreciation of the risks naturally incident to the employment or arising from a particular situation in which the work is done, negatives a prima facie liability of the master, and does not involve the aggravation or creation of the peril by misconduct of the servant. Contributory negligence of the servant rests on a breach of duty to take care, displaces a prima facie liability of the master, adds a new danger to the situation not necessarily incident to the work, and is imposed by law upon the servant, however unwilling or protesting he may be.

Assumption of risk is based, not upon the contract, but on the principle expressed by the maxim, ‘Volenti non fit injuria.’

The test of ‘knowledge of danger’ is not the exercise of ordinary care to discover danger, but whether the danger was known to or plainly observable by the employé. The test of ‘appreciation of risk’ is whether the servant understood the risk, or by the exercise of ordinary observation ought to have understood it.

The tendency of the English authorities here reviewed, and in a less degree of the American cases, is to submit to the jury questions arising from the application of the doctrine of assumption of risk to facts which are disputed, or from which reasonable minds might draw different inferences.

Plaintiff's assumption of risk and contributory negligence were for the jury. Wm. E. Dampier and Leonard J. Dobner, for appellant.

A. H. Bright and Munn & Thygeson, for respondent.

JAGGARD, J.

Plaintiff and appellant, a servant of defendant and respondent railway company, sought to recover for personal injuries. At the close of the evidence the court directed a verdict for defendant. This appeal was taken from an order refusing to set aside that verdict and to grant plaintiff a new trial.

Plaintiff's work, for a period of about three months, had been to shovel coal into the coal buckets of an elevator operated by a gasoline engine in a concrete building 12 feet square. For present purposes it must also be regarded as a fact that he was in charge of the engine. On this occasion he had started it, taken his torch, and gone to work. The light was not one of the issues in the case as finally presented. While he was shoveling, he observed that the engine ‘did not sound right.’ He returned to the engine house, and when he had taken one or two steps in from the door he ‘stepped on something and fell.’ The belt and pulley were a short distance above the floor. The lower side of the belt moved from the top downward, and, passing around the driving wheel, went over the big wheel to the upper part and front of the building. ‘What it did with him was more than he could tell.’ He was badly injured. Inter alia, part of the brain escaped through the right ear. He was found unconscious, bleeding, and dirty on a bench in the engine house. His ear was found under the lever, together with a lot of blood. The trial court directed a verdict for the defendant.

1. The initial question in the case is whether such actionable negligence was shown on the part of the defendant as to require submission to the jury. Plaintiff claims that the factory act (section 1813, Rev. Laws 1905) required respondent to make an additional protection for this engine within the inclosure built for it. Defendant argues that this statute did not apply, and that under any circumstances the building complied with its provisions and rendered a second guarding unnecessary. A majority of the court are of the opinion that the terms of the statute are broad enough to apply to this case. In Christianson v. N. W. Compo Board Co., 83 Minn. 25, 27, 85 N.W. 826, 827,85 Am. St. Rep. 440, Start, C. J., said: ‘The statute was intended to protect from personal injury the workmen or employés in any shop, mill, or factory by reason of dangerous machinery therein, and it must be so construed as to give effect to such wise and humane purpose.’ The writer of this opinion thinks that this was an engine room, and not a workshop, and that the statute did not apply. He is also of the opinion, however, in view of the positive duty, apart from the statute, which rests on the master to exercise due care in providing a reasonably safe place for the servants' work, that, although the master was not necessarily liable for the failure to guard, it was a question for the jury to determine what protection should have been afforded and whether a guard was reasonably necessary. Smith v. Baker & Sons, 1891 App. Cases, 325, at page 353; Lloyd v. Woolland Bros., 67 L. T. 73; Wheeler v. Wason Mfg. Co., 135 Mass. 296;Nadau v. White River Lumber Co., 76 Wis. 126,43 N. W. 1135,20 Am. St. Rep. 29; Anderson v. C. N. Nelson Lumber Co., 67 Minn. 79, 81, 69 N. W. 630, per Mitchell, J.; Labatt, M. & S. § 76, and cases cited.

It appears from the record that no railing or other device was provided. No particular difficulty has been suggested in the matter of providing an adequate safeguard against the occurrence of just such an accident as here took place. Evidence that it was practicable and feasible so to guard this machinery as to provide reasonable protection against such a fall as plaintiff experienced was admissible. The trial court erred in excluding it. In Myers v. Hudson Iron Co., 150 Mass. 125, 128, 22 N. E. 631,15 Am. St. Rep. 176; Callen, J., said: ‘In order to aid the jury in determining whether defendant had exercised reasonable care in providing and maintaining the machinery in actual use, it was competent to show what other kinds of machinery or appliances were used elsewhere or could have been used here.’ This general rule has been specifically applied to evidence as to guards of machinery in use. Wheeler v. Wason Mfg. Co., 135 Mass. 294. And see Peterson v. Johnson, 70 Minn. 538, 541, 73 N. W. 510;Barbo v. Bassett, 35 Minn. 485, 29 N. W. 198;Poezerwinski v. Lumber Co., 117 N. W. 486.

The four walls of the building were no more an adequate guard, because the building was small, than if the building had been large. That they protected men working on the outside did not tend to show that they would protect men working on the inside the engine. Indeed, the limited space within which the plaintiff worked was likely to increase the peril to which he was exposed.

It is urged, however, that defendant's negligence in failing to guard the machine was not sufficiently shown to have been the proximate cause of the injury of which he complains. Circumstantial evidence tended directly to show that plaintiff was injured by coming in contact with the moving belts and machinery. How else the accident could have occurred has not been suggested. That there is an unwritten page in this narrative is obvious. But whether it was negligence not to provide a guard, and whether, if that negligence was proved, it was the proximate cause of the injury, were for the jury on authority and on principle. ‘Proof of proximate cause is subject to no more burdensome rule than is applied to any other essential act of ordinary common- law action. It must be established by preponderance of evidence, direct or circumstantial. * * * A cause being shown which might produce an accident of that particular character, it is a warrantable inference, in absence of showing of other cause, that the one known was the operative agency in bringing about such result.’ Weaver, J., in Lunde v. Cudahy Packing Co. (Iowa) 117 N. W. 1063, at page 1068. In Bolen-Darnell Coal Co. v. Williams (C. C. A.) 164 Fed. 665, 669, the servant walked along a narrow path, slipped, and was precipitated into a pit and on a wheel. The question of cause was submitted to the jury. In Swift v. AEtna, etc., Co. (Mich.) 111 N. W. 110, plaintiff was...