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.
BRANTLY
C.J.
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
brother
over 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,
...
