Sorenson v. N. Pac. Ry. Co., 3735.

Docket NºNo. 3735.
Citation53 Mont. 268
Case DateFebruary 16, 1917
CourtUnited States State Supreme Court of Montana

53 Mont. 268


No. 3735.

Supreme Court of Montana.

Feb. 16, 1917.

Appeal from District Court, Gallatin County; Ben B. Law, Judge.

Action by William Sorenson against the Northern Pacific Railway Company. From a judgment for plaintiff, and order denying motion for new trial, defendant appeals. Affirmed.

W. S. Hartman, of Bozeman, and Gunn, Rasch & Hall, of Helena, for appellant.

Keister & Bath, of Bozeman, for respondent.


Plaintiff brought this action to recover damages for a personal injury suffered by him during the course of his employment as a section hand. The complaint alleges in substance that while he was in the employ of defendant and under the immediate direction of its foreman, Manuel Pearson, whom he was bound to obey, it became plaintiff's duty to assist in lifting a heavy rail then lying on the ground near the track of defendant; that the rail was 30 feet in length and weighed about 990 pounds; that it was to be lifted from the ground to and upon a hand car to a height of approximately 3 feet; that to lift such a rail requires from six to eight able-bodied strong men; that this fact was well known to the defendant and its foreman, or ought to have been known to them, but was not known to plaintiff; that it was defendant's duty, in the exercise of reasonable care, to furnish a sufficient number of men to lift the rail so that plaintiff would not be exposed to danger in the performance of his duty; that defendant failed to perform its duty in this behalf; that knowing that from six to eight able-bodied strong men were necessary for that purpose, it furnished only two men beside the plaintiff to do the work; that this number was insufficient; that the plaintiff had never had any experience in lifting rails; that this fact was known to defendant, and that, through the negligence of defendant in failing to furnish enough men and while plaintiff was assisting to lift the rail, he suffered the injury complained of. Defendant's general demurrer having been overruled, it answered denying the negligence charged and alleging affirmatively that plaintiff assumed the risk. There was issue by reply. The plaintiff had verdict and judgment. The cause is before this court upon appeals from the judgment and an order denying defendant's motion for a new trial. The principal questions submitted are, whether the complaint discloses upon its face that plaintiff assumed the risk, and whether, if it does, the evidence discloses that he did so.

There is a tunnel on the line of defendant's road to the east of Bozeman, in Gallatin county. In this tunnel and near the portal towards Bozeman a rail in the track had become defective, and it was necessary to replace it with a new one. The plaintiff with two others, a young man of 19 and an old man of 62 years, accompanied by Manuel Pearson, the section foreman, were engaged in doing the work. They had obtained the new rail from rail posts a short distance to the west and brought it on a hand car. In loading it on the car they had been assisted by the brother of plaintiff who chanced to be passing. When the new rail had been put in place, it was necessary to remove the defective one in order to clear the track. It was lying near the middle of the track. To load it on the car the foreman, assisted by the plaintiff and one of the remaining two men, lifted one end of it while the fourth man pushed the car under it. A lift of 2 1/2 feet was necessary in order that the car might have room to pass under. As plaintiff lifted, he felt a sharp pain in his side. Later a swelling appeared in his groin which, upon examination, his physician found to be due to a rupture. Plaintiff was 23 years of age. He had been reared upon a farm in Gallatin county, and had the experience of the average boy brought up upon a farm and inured to such labor as this pursuit requires. He had worked for defendant as a section hand for 3 or 4 months early in 1913. He again entered its service in January, 1914, and continued therein until March 23, 1914, when he was injured. We quote the following excerpts from the testimony of plaintiff which disclose how the work was begun and proceeded until it was completed, and plaintiff's experience in that kind of work:

“Q. Referring to the rail in question, how do you get your information as to the weight and length of this rail? A. I inquired of the foreman after the accident. Q. Did you know how long this rail was or how much it weighed before the accident occurred? A. No, sir; I did not. Two men assisted me in the lifting of the rail--the foreman and the young Romeo, 19 years of age, and the old man. The foreman, Mr. Pearson, had charge and directed this work. Q. Did you previous to this accident ever have any experience in lifting rails? A. No, sir; I did not. Q. Did you know that an injury of this kind might result to you as the result of lifting the rail? A. No, sir; I did not. * * * Q. You knew that was one of the duties of section hands when you worked there in 1913, to replace defective rails, did you not? A. I didn't replace any defective rails when I worked there before--or broken rails. * * * Q. Don't you know that it was your duty as part of that section gang to replace that rail if you found one--didn't you know that was your duty? A. I didn't know that they would try to put it in with the amount of men we had. * * * Q. Where did you get the new rail at the time you put it into the track? A. Outside. Q. Outside of the tunnel? A. Yes, sir. Q. How far outside of the tunnel? A. About a quarter of a mile or something like that; maybe not that far. Q. It was one of the rails that stands upon one of these two rail posts along the side of the track? A. Yes, sir. Q. How did you get that rail from the rail post on the outside of the track into the tunnel? A. We slid it; we had those kind of-- Q. (interrupting). Tongs? A. Yes, and kind of zigzagged it back and forth until we got it into the middle of the track and we had a--we had a bar in the middle of the track, and it was up on that--I can't say for sure, but I am quite certain that we were trying to lift the rail up. My brother was going up to the depot after some cans, and I hollered at him and said, ‘Hey, kid, come over and give us a lift; come and help us.’ Q. Why did you call your brother over there--he wasn't working for the company? A. I wanted him to give us some help. Q. Why did you want him to give you help? A. To make it easy for us. Q. As I understand now you first rolled this rail off these railposts, and then you had these tongs which are something similar to a pair of ice tongs which clamped onto the top of the rail and had handles to it to pull on. Then you proceeded to pull the rail across from the rail posts to the track by pulling one end around and then going to the other end and pulling it around a few feet? A. Yes, sir. Q. When you got it to the track how did you get it over the rail? A. We had a bar from the top of the track, and we slid it up onto the track; there was a bar across the two rails so it couldn't drop clear down. Q. That would give you an opportunity to get your two hands under it to lift it up? A. Yes, and a much easier lift. Q. As a matter of fact, you say you called your brother over, and the four of you lifted it up and the other fellow shoved the car under. Just the same as when you took the rail out? A. Yes, sir; but it wasn't quite so hard a lift; these are old side tracks, and they have no ballast under the rails, and the rails are much smaller, and in the tunnel it is higher still, and we have three inches of shim under the rails; it was nine inches further lift in the tunnel than outside. Q. You lifted it the same way; three men lifted up one end and the fourth man shoved the car underneath it? A. Practically the same way. Q. As I understand you, when you got into the tunnel you skidded the new rail off the hand car, took out the old rail, and lifted that into the center of the track and put the new rail in? A. Yes, sir. Q. So that the old rail was lying in the center of the track? A. Yes, sir. Q. You then lifted that rail as you have before stated by three of you lifting it up and the other man shoving the car under it? A. Yes, sir. Q. In pulling this rail over from the side track or from the rail posts, and lifting it on the car outside there, you learned that it was a pretty heavy rail? A. We had lots of time, when on the outside, we weren't rushed at all; on the inside we were in a hurry, because 170 passenger was coming and we had to hurry; it wasn't half the lift on the outside. Q. You didn't discover on the outside that this rail weighed several hundred pounds? A. I didn't have any idea of what it weighed. Q. You thought it necessary to call your brotherover from the road and ask him to help give a lift? A. I thought he could; I thought he was going by, and he might help us. Q. You were the only one who called him over and asked him to help you? A. Yes, I asked him if he would. * * * Q. I don't know whether I asked you if the rail you took out of there in the tunnel was the same sized rail as the one you put in, was it? A. Yes, sir. * * * Q. You say that during your experience as a section hand in 1913 you never saw any rails? A. Yes, I saw rails, lots of them. I never saw rails replaced by new rails, not on my section; they never replaced any while I was there. I saw lots of rails along the track, and I saw rails outside of the track. I saw rails along on these section posts. I never had occasion to put one of those rails out on section posts. I don't know what the weight of a hand car is. I have lifted with a hand car. It is a duty of a section hand to lift off a hand car and lift it on whenever they stop to do any work, but we only have to lift it about an inch and it is off.”

The action was brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 U. S. Stat. 65; Amendment Act April...

To continue reading

Request your trial
20 cases
  • Leonidas v. Great N. Ry. Co.
    • United States
    • United States State Supreme Court of Montana
    • 27 October 1937
    ......Sorenson v. Northern Pacific Ry. Co., 53 Mont. 268, 163 P. 500, and cases therein cited. The rule is well settled that an employee does not assume the risk of ...& G. Ry. Co. v. Hawkins, 178 Okl. 639, 64 P.(2d) 266;Louisville & N. R. Co. v. Hall, 223 Ala. 338, 135 So. 466;Missouri Pac. R. Co. v. Hunnicutt (Ark.) 104 S.W.(2d) 1070;Pearl River Valley R. Co. v. Moody (Miss.) 171 So. 769;Bowman v. Kansas City El. Light Co. (Mo.App.) ......
  • Leonidas v. Great Northern Ry. Co.
    • United States
    • United States State Supreme Court of Montana
    • 27 October 1937
    ...... enacted for the safety of employees, has contributed to the. injury or death of the employee. Sorenson v. Northern. Pacific Ry. Co., 53 Mont. 268, 163 P. 500, and cases. therein cited. The rule is well settled that an employee does. not assume the ...& G. Ry. Co. v. Hawkins, 178 Okl. 639, 64 P.2d 266;. Louisville & N. R. Co. v. Hall, 223 Ala. 338, 135. So. 466; Missouri Pac. R. Co. v. Hunnicutt (Ark.) . 104 S.W.2d 1070; Pearl River Valley R. Co. v. Moody. (Miss.) 171 So. 769; Bowman v. Kansas City El. Light. Co. ......
  • Sorenson v. Northern P. Ry. Co.
    • United States
    • United States State Supreme Court of Montana
    • 16 February 1917
    ... 163 P. 560 53 Mont. 268 SORENSON v. NORTHERN PAC. RY. CO. No. 3735. Supreme Court of Montana February 16, 1917 . .          Appeal. from District Court, Gallatin County; Ben B. Law, Judge. . .          Action. by William Sorenson against the Northern Pacific Railway. Company. From a judgment for plaintiff, and order ......
  • Matson v. Hines
    • United States
    • United States State Supreme Court of Montana
    • 5 June 1922
    ......McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701;Coulter v. Union Laundry Co., 34 Mont. 590, 87 Pac. 973;Leary v. Anaconda C. Min. Co., 36 Mont. 157, 92 Pac. 477;Monson v. La France Copper Co., ...65, 114 Pac. 778;Fotheringill v. Washoe Copper Co., 43 Mont. 485, 117 Pac. 86;Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809;Sorenson v. Northern Pac. Ry. Co., 53 Mont. 268, 163 Pac. 560.         When an employee knows and appreciates the danger brought about by defective ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT