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

• Decision Date: 05 March 1909
• Docket Number: Nos. 15,923-(137).,s. 15,923-(137).
• Citation: 107 Minn. 260
• Parties: TOM RASE v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 260

107 Minn. 260

TOM RASE v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY.¹

Nos. 15,923-(137).

Supreme Court of Minnesota.

March 5, 1909.

Action in the district court for Ramsey county to recover $60,400 damages for personal injuries sustained while at work in defendant's coal elevator. The case was tried before Kelly, J., who directed a verdict in favor of defendant. From an order refusing to set aside the verdict and to grant a new trial, plaintiff appealed. Reversed.

William 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 gasolene engine in a concrete building twelve 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 "didn't 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, R. L. 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. Northwestern Compo-Board Co., 83 Minn. 25, 27, 85 N. W. 826, 827, 85 Am. St. 440, Start, C. J., said: The statute "was intended to protect from personal injury the workmen or employees 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, 1891 App. Cas. 325, at page 353; Lloyd v. Woolland Bros., 87 L. T. (N. S.) 73; Wheeler v. Wason, 135 Mass. 294, 296; Nadau v. White River, 76 Wis. 120, 126, 43 N. W. 1135, 20 Am. St. 29; Anderson v. C. N. Nelson Lumber Co., 67 Minn. 79, 81, 69 N. W. 630, per Mitchell, J.; 1 Labatt, Master & Servant, § 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, 150 Mass. 125, 128, 22 N. E. 631, 15 Am. St. 176; Allen, 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, and might have been used here." This general rule has been specifically applied to evidence as to guards of machinery in use. Wheeler v. Wason, 135 Mass. 294. And see Peterson v. Johnson-Wentworth Co., 70 Minn. 538, 541, 73 N. W. 510; Barbo v. Bassett, 35 Minn. 485, 29 N. W. 198; Poczerwinski v. C. A. Smith L. Co., 105 Minn. 305, 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 or about 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 the proof of any other essential fact in an ordinary law action. It must be established by a preponderance of the evidence, direct or circumstantial. * * * A cause being shown which might produce an accident, and it further appearing that an accident of that particular character did occur, it is a warrantable inference, in the 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 (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 Swick v. Ætna, 147 Mich. 454, 111 N. W. 110, plaintiff was opening an air cock in a pipe leading into a vat. His wrench slipped, and he came in contact with an unguarded belt running on pulleys. In holding that the unguarded belt was the proximate cause of the accident, Hooker, J., said, at page 462: "Nor should it be said that the slipping of the wrench and not the unguarded belt was the proximate cause of the injury. Manifestly, if this man had not fallen or slipped, or if something out of the ordinary had not happened, he would not have come in contact with the belt; but that is always the case where one is hurt by machinery. Something happens which causes him to get against or into it, and this case is not distinguishable, in that respect, from Swoboda v. Ward, 40 Mich. 420, where a plaintiff stepped into some unguarded cog wheels." And see Miller v. Kimberly, 137 Wis. 138, 118 N. W. 536, 538.

2. The learned trial court after careful consideration held that as a matter of law plaintiff assumed the risk. As it will be subsequently pointed out, his conclusion was sustained and opposed by an almost equal number of decisions of this court on similar facts. This is one of the class of constantly recurring cases in which counsel are unable to advise their clients and courts unable to agree or decide consistently. It would be easy, but inadequate, to dogmatically determine this particular question without considering the "veritable chaos of conflicting precedents" which have applied the doctrine. It may tend to clarification of the subject to consider at some length its ultimate basis, its character as a distinctive defense, its standards, and the extent to which assumption of risk is a question for the court or for the jury.

In the first place it is insisted at the one extreme that its ultimate basis is economic, not juristic (1 Labatt, Master & Servant, §§ 62 156), and that sound public policy demands, if not its abolition, its restriction and modification to a considerable degree. The tendency of academic discussion in this direction is perhaps not more pronounced than of that of many decisions. In Yarmouth v. France, 19 Q. B. Div. 647, 653, for example, Lord Esher said: "It is to my mind a horrible way of stating the duty, to say that a master owes no duty to a servant who knows that there is a defect in machinery and, having pointed it out to one in authority, goes on using it. It seems cruel and unnatural, and in my view utterly abominable." Among the many objections urged are these: The original rule was artificial in origin and is unjust in operation, because it imposes upon the servant the risks of employment with compensation for consequent injury with which the industry should be charged. The servant does not in any common-sense way exercise any volition. He must work where danger exists, or in some other place with corresponding peril, or remain idle. See Lindley, J., in Yarmouth v. France, supra. The reasoning by which it is sought to be justified, carried to its logical conclusion, tends to result in this paradox: The more grossly the master is negligent, the...