Songstad v. Burlington, C.R. & N. Ry. Co.
| Decision Date | 09 February 1889 |
| Citation | 41 N.W. 755,5 Dakota 517 |
| Parties | Songstad v. Burlington, C. R. & N. Ry. Co. |
| Court | North Dakota Supreme Court |
Appeal from district court, Minnehaha county.
Appeal from a judgment of the district court of Minnehaha county entered upon a verdict, and from an order overruling motion for new trial. The action was brought to recover damages alleged to have been sustained by the respondent by reason of the negligence of the appellant. The respondent was in the employ of appellant in the capacity of a shoveler, and at the time he received the injuries complained of was engaged in loading cars from a gravel-pit, under the direction of respondent's foreman. An embankment of earth had been formed by the removal of gravel under it, 12 or 13 feet high and was frozen. The foreman, with the knowledge of the respondent, attempted to pry the bank down. While the foreman was thus engaged, the respondent selected a place for continuing his work, from which place the foreman was in full view as he worked, and which he considered far enough removed from the bank, though it should fall, to insure his safety. As the bank began to fall the respondent attempted to retreat further, and stumbled over a clod of earth and fell, and was caught by the falling earth, and his leg broken. To recover the damages caused thereby this action was brought. At the close of plaintiff's case the appellants moved the court to direct a verdict for defendant on the ground that there was not sufficient evidence to support a verdict for the plaintiff, which motion was overruled. A similar motion was made after the evidence was closed, and again denied; to each of which rulings appellant excepted. The respondent had a verdict, and, after motion for new trial on behalf of appellant was denied judgment was duly entered for plaintiff, from which appellant appealed, assigning each of the rulings aforesaid as errors. The other material facts are stated in the opinion.
Boyce & Boyce and S. K. Tracy, for appellant. Parliman & Stoddard, for respondent.
SPENCER, J., (after stating the facts as above.)
The evidence in this action, when construed most favorably to the plaintiff, discloses that in November, 1885, he engaged his services to the defendant as a laborer; that he and a considerable number of other men were at work under the supervision of one Mahoney, as foreman, in the work of shoveling gravel from a gravel bed or bank onto a train of platform cars, which, when loaded, were drawn to Sioux Falls a distance of a few miles, emptied, and returned to the pit for the purpose of being reloaded; that the plaintiff had been thus engaged 10 days or more when the accident complained of occurred; that about November 25, 1885, an overhanging bank of the gravel-pit, 12 or 13 feet high, having been produced by the removal of gravel under and adjacent to it, was attempted to be pried down by the foreman, who for that purpose went upon the bank with a bar, and commenced prying, having first given the men in his charge notice of what he was about to do. The plaintiff and the other men at work heard the warning, and stopped working for a few moments, and watched the foreman's efforts to pry down the bank. The bank failing to yield to his efforts, the foreman told the men to proceed with their work. The foreman continued his efforts to break down the bank, and the plaintiff returned to his labors at a point from which he could see him, (the foreman;) and when he supposed he was in a place of safety, to use his language, ...
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