Swanson v. Great Northern Ry. Co.

• Decision Date: 23 June 1898
• Docket Number: Nos. 11,174 - (165).,s. 11,174 - (165).
• Citation: 73 Minn. 103
• Parties: JACOB SWANSON v. GREAT NORTHERN RAILWAY COMPANY.
• Court: Minnesota Supreme Court

73 Minn. 103

JACOB SWANSON v. GREAT NORTHERN RAILWAY COMPANY.

Nos. 11,174 - (165).

Supreme Court of Minnesota.

June 23, 1898.

Action in the district court for Hennepin county to recover $10,000 for personal injuries. The answer set up a former judgment as a

bar. Defendant moved for judgment on the pleadings. Plaintiff made a cross motion for leave to amend his reply and put in issue the plea of res judicata. The court, McGee, J., denied plaintiff's motion for the sole reason that the former judgment was a bar to the maintenance of the action, and for the same reason granted defendant's motion. From a judgment entered in pursuance of the order, dismissing the action, plaintiff appealed. Reversed.

Frank W. Booth, for appellant.

W. E. Dodge, for respondent.

COLLINS, J.¹

This is the second action brought to recover for injuries plaintiff claims to have received while in defendant's employ. To a complaint in the first a general demurrer was filed, and on appeal this court reversed an order made below overruling the demurrer. Swanson v. Great Northern Ry. Co., 68 Minn. 184, 70 N. W. 978. We there held that the complaint did not contain facts sufficient to constitute a cause of action. Judgment of dismissal on the merits, with costs, was then rendered, and entered in the district court in defendant's favor.

The allegations found in the complaint in the present action are not identical with those found in the other complaint, although referring to the same accident. In addition to what had been set forth in the other complaint, it was here alleged that, on the day before the accident, holes had been drilled by defendant in the dirt and gravel at the top of the hill, in which powder had been placed and then exploded for the purpose, and which had the effect, of loosening the earth, so that it could be more easily removed; that of this plaintiff had no knowledge; and that defendant then negligently and wantonly set him at work at a place directly underneath this loosened material, which fell upon and injured him. There are other allegations in respect to the blasting and the cause of the injury, which need not be specially referred to.

In passing on the motion, the court below assumed, and rightly, we think, that a cause of action was stated; that new facts sufficient for a recovery had been alleged; and that it was, at least for the jury, to determine whether defendant owed to plaintiff the duty of supervision under the circumstances, in order to protect him from unnecessary dangers. On the new facts set forth, it could not be held as a matter of law, under the doctrine of the "gravel pit cases," that plaintiff assumed the risks of the employment. See Hill v. Winston, supra, page 80. This being the condition, the court below erred when it granted defendant's motion for judgment on the pleadings on the sole ground that the abovementioned judgment — pleaded in the answer herein — was a bar to the maintenance of this action.

The following rules are deducible from the authorities, and are laid down in Gould v. Evansville & C. R. Co., 91 U. S. 526, 533:

"(1) That a judgment rendered upon demurrer to the declaration or to a material pleading setting forth the facts, is equally conclusive of the matters confessed by the demurrer as a verdict finding the same facts would be, since the matters in controversy are established in the former case, as well as in the latter, by...