Rief v. Great N. Ry. Co.

• Decision Date: 17 July 1914
• Docket Number: No. 18642[175].,18642[175].
• Citation: 126 Minn. 430,148 N.W. 309
• Court: Minnesota Supreme Court
• Parties: RIEF v. GREAT NORTHERN RY. CO.

126 Minn. 430

148 N.W. 309

RIEF

v.GREAT NORTHERN RY. CO.

No. 18642[175].

Supreme Court of Minnesota.

July 17, 1914.

Appeal from District Court, Swift County; Gorham Powers, Judge.

Action by Herman Rief against the Great Northern Railway Company for personal injuries. Verdict for plaintiff, and, from denial of motion for judgment notwithstanding the verdict or for new trial, defendant appeals. Reversed, and new trial granted.

Syllabus by the Court

The uncontradicted evidence showed plaintiff to be an employé, and not a licensee; hence no prejudice from excluding an agreement void as between employer and employé under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]) which applies to the cause of action.

In a personal injury action tried within two months after a claimed serious, and unexpected, permanent malady developed, where the evidence as to permanency was regarded so unsatisfactory to the trial court that the verdict was considered excessive to the extent of one-half, a new trial should have been granted, instead of the reduction.

The court erred in not permitting a second physical examination; the defendant having been misled by plaintiff in the first examination as to the injury claimed. M. L. Countryman and A. L. Janes, both of St. Paul, for appellant.

John I. Davis, of Benson, and Davis & Michel, of Marshall, for respondent.

HOLT, J.

On the 10th of September, 1913, plaintiff, in attempting to descend from a box car to throw a switch, was struck by a cattle chute which, it is claimed, was negligently constructed too near the track, of which fact plaintiff was not informed. Plaintiff received and was treated for a fractured arm, and also claims other injuries. A verdict of $16,000 was awarded. Defendant moved for judgment notwithstanding the verdict, and, in case of denial thereof, for a new trial. The court denied the motion on condition that plaintiff consented to a reduction of the verdict to $8,000. The defendant appeals.

For 12 days previous to his injury plaintiff had been upon the defendant's freight trains as a student brakeman under the following written agreement signed by him:

‘I, the undersigned, state that I am at least twenty-one years of age and desirous of qualifying myself to perform the service of brakeman, and for that purpose do hereby apply to the Great Northern Railway Company for the privilege and opportunity of learning the duties pertaining thereto. I understand and fully appreciate the dangers and risks of personal injury incident to railway operation, and in consideration of said company granting me the privilege, license, and permission to enter upon its property, trains, and cars, for the purpose of learning and familiarizing myself with the duties required of a brakeman, I hereby assume all hazard and risk of personal injury and damage, whether such injury and damage are the result of my own negligence, inexperience, or lack of knowledge, or are in any manner caused by the negligence of said company, defects in its premises or in any of its instrumentalities, or by the negligence, carelessness, or misconduct of any of its officers, agents, or employés, and agree to fully indemnify and save harmless said company from any and all claims for any such injuries received or damages sustained by me; it being fully understood and agreed by me that while learning the duties and requirements of such position I shall receive no compensation and in no sense be deemed a servant or employé of said company, but merely a licensee upon its property, trains, and cars for my own personal benefit and education, the license to be revoked at any time at the option of the company.’

[1] The court held that plaintiff was an employé of the defendant as a matter of law, and, since it was admitted that the train from which plaintiff fell was engaged in interstate traffic, the court excluded the contract as void and of no effect under the federal Employers' Liability Act. We think there was no prejudicial error in the ruling; for, although there is nothing in the contract itself indicating that plaintiff as student brakeman was to render any service whatever for defendant, the testimony conclusively shows that he was expected to perform, and did perform, such tasks as were assigned him by the members of the crew in charge of the trains. He helped load and unload freight at way stations, threw switches, and did whatever he was ordered to do in the operation of the train. Under the following decisions he was an employé, and not a licensee: Weisser v. Southern Pac. Ry. Co., 148 Cal. 426, 83 Pac. 439,7 Ann. Cas. 636;Huntzicker v. Ill. Central Ry. Co., 129 Fed. 548, 64 C. C. A. 78; and Atchison, T. & S. F. Ry. Co. v. Fronk, 74 Kan. 519, 87 Pac. 698,11 Ann. Cas. 174. We are cited to no decision to the contrary, and have found none.

[3] The plaintiff was taken to a hospital after his injury and the fractured arm set and placed in plaster cast. He complained of no other pain or injury, according to his own testimony, until two weeks after the accident, when he states that he at one time told the physician that one of his hips pained him, and that he had headaches. When the cast was removed he insisted on...