Rief v. Great Northern Railway Co.
| Decision Date | 17 July 1914 |
| Docket Number | 18,642 - (175) |
| Citation | 148 N.W. 309,126 Minn. 430 |
| Parties | HERMAN RIEF v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Swift county to recover $20,000 for personal injury received while in the employ of defendant. The answer set up that plaintiff was a mere licensee upon defendant's train, at the special instance and request of plaintiff, to enable him to become familiar with the duties of a brakeman, and that, for the purpose of being permitted to ride upon defendant's trains, plaintiff for a valuable consideration executed the written agreement mentioned in the opinion. The case was tried before Powers, J., who when plaintiff rested denied defendant's motion for a dismissal of the action and at the close of the testimony denied defendant's motion for an instructed verdict, and a jury which returned a verdict for $16,000 in favor of plaintiff. From an order denying its motion for judgment notwithstanding the verdict or for a new trial if defendant consented to a reduction of the verdict to $8,000, defendant appealed. Reversed and new trial granted.
Injury to servant -- evidence of void agreement.
1. The uncontradicted evidence showed plaintiff to be an employee and not a licensee, hence no prejudice from excluding an agreement void as between employer and employee under the Federal Employer's Liability Act, which applies to the cause of action.
New trial because of excessive verdict.
2. 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.
Right to make physical examination.
3. 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, for appellant.
John I. Davis and Davis & Michel, for respondent.
On the tenth 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 to 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 such hazard and risk of personal injury and damage, whether such injury or 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 employees, 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 employee 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."
The court held that plaintiff was an employee 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 Employer's Liability Act (Act April 22, 1908, c. 149, 35 St. 65 [U.S. Comp. St. Supp. 1911, p. 1322]). 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 employee and not a licensee. Weisser v. Southern Pac. Ry. Co. 148 Cal. 426, 83 P. 439, 7 Ann. Cas. 636; Huntzicker v. Illinois Cent. Ry. Co. 129 F. 548, 64 C.C.A. 78, and Atchison, T. & S.F. Ry. Co. v. Fronk, 74 Kan. 519, 87 P. 698, 11 Ann. Cas. 174. We are cited to no decision to the contrary, and have...
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