Symons v. Great Northern Ry. Co.
| Decision Date | 19 July 1940 |
| Docket Number | No. 32374.,32374. |
| Citation | 208 Minn. 240,293 N.W. 303 |
| Parties | SYMONS v. GREAT NORTHERN RY. CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Polk County; James E. Montague, Judge.
Action by Julia Symons against the Great Northern Railway Company to recover for the wrongful death of her husband. From an order denying the defendant's motion in the alternative for judgment or for a new trial, the defendant appeals.
Order affirmed.
A. L. Janes and J. H. Mulally, both of St. Paul, for appellant.
F. T. Cuthbert, of Devils Lake, N. D., and W. E. Rowe, of Crookston, for respondent.
This action for wrongful death is brought under the North Dakota statute, Compiled Laws of North Dakota, 1913, §§ 8321-8324 which is similar to other acts providing for recovery in such cases, except that the maximum amount recoverable is not limited. Section 8322 provides: "In such actions the jury shall give such damages as they think proportionate to the injury resulting from the death to the persons entitled to the recovery."
The decedent was the husband of plaintiff, who brings this action on behalf of herself and their three children and his adopted daughter prior to his marriage to plaintiff.
Plaintiff claimed that decedent was employed as a clerk by defendant in its storerooms at Grand Forks, North Dakota, working on a night shift; that it was part of his duties to keep the store-rooms clean; that one of these rooms known as the oil-room was used for the storage and distribution as needed of oil, paint, carbon tetrachloride and other supplies; that defendant negligently permitted plaintiff to use carbon tetrachloride to clean the floors, without warning him that it gave off deadly suffocating gases when used where the heat was such as it was in the oil room; and that as a result of such use while cleaning the floors on November 23, 1935, decedent died of suffocation from inhaling the gas given off by the carbon tetrachloride.
The defense was that defendant neither authorized the use of the carbon tetrachloride for floor cleaning nor furnished the same to decedent for that purpose; that if decedent used it on the night in question such use was unauthorized and unknown to defendant; that decedent on the night in question was using the carbon tetrachloride not to clean the floor of the oil room, but to clean his sheep skin lined overcoat; that decedent assumed the risk of using the substance; and that he was guilty of contributory negligence.
It is not disputed that decedent was employed by defendant; that he died in the oil-room on the night of November 23, 1935, from inhaling carbon tetrachloride gas; that death occurred during his regular shift that night; that decedent was then earning $140 per month; that he was 67 years of age; that he was in good health and of good habits; and that he left him surviving his widow of the age of 55 years and three sons of the ages of 16, 14, and 8, who were dependent on him. The adopted daughter apparently was not a dependent. Decedent at the time of death had a life expectancy of 10 years and all his dependents had an expectancy in excess of that.
Plaintiff and the two older boys had been with decedent when he cleaned the oil-room with carbon tetrachloride something like 15 or 17 times between October, 1932, and November, 1935. The storerooms were open for business and decedent filled requisitions for other employees while doing such cleaning. The oil-room was hot, the temperature being 85 to 90 degrees Fahrenheit. Because of that fact, it was decedent's invariable custom to strip down to his underwear and shoes and stockings while cleaning the oil-room. He always removed the contents from his clothes before taking them off. Then he drew off a quantity of the carbon tetrachloride from a tank into a pail called the dope bucket. Mrs. Symons thought he used from one-half to three-fourths of a bucket each time. That amounted to one and seven-eighths to three gallons. She said that she did not know just how much he used, but that she could see the liquid in the bucket. The two boys estimated that he used about two or three quarts at a time. He cleaned the floor by moistening some waste with the liquid and then getting down on his hands and knees and rubbing it on the floor to remove oil and paint spots. By the time he completed the job the contents of the bucket became very dirty. He then placed the bucket and the waste in it under the faucet of the tank in which the liquid was kept.
There was evidence that carbon tetrachloride is a noninflammable solvent of oils and fats and that it is used to remove oil, grease, paint and similar substances and as a fire extinguisher. It gives off a vapor which increases in amount with increase in temperature. The vapor is heavier than air and has a tendency to seek low levels. Thus it might be inhaled by one down on the floor as decedent was when he cleaned with it. Like chloroform, to which it is chemically akin, it is an anesthetic. When inhaled it causes suffocation and death. Its qualities are well known to the learned and trained, but not commonly known to the unlearned and untrained. Decedent was not shown to have known or understood the chemical qualities of carbon tetrachloride.
Defendant not only denied all authorization, express or implied, of decedent's use of the carbon tetrachloride, but showed also that it provided as floor cleaners trisodium and gold dust to be used in water solution. It also claims that decedent's use of the carbon tetrachloride was contrary to orders that no supplies were to be used without a requisition. For the years 1934 and 1935 requisition slips purporting to cover all the carbon tetrachloride used were produced which showed that none was used for cleaning the oil-room floor. The amount received in store for 1934 was 124 gallons against which requisitions were issued for 108¼ gallons and for 1935 117 gallons with requisitions for 94 gallons. Thus 63 quarts were unaccounted for in 1934 and 92 quarts in 1935. No records to show the amount of trisodium and gold dust received and requisitioned were produced. There was evidence that trisodium was used by decedent to clean the wooden floor in other rooms without requisitions for what he used.
Furthermore, defendant contended that the evidence showed that decedent washed his coat and not the floor with carbon tetrachloride. His coat was found on the tank where the liquid was kept. The dope bucket was found under the faucet, but without any waste in it. It is argued that the only inference is that he cleaned his coat in the pail. The evidence is not clear that the pail was large enough for that purpose. The absence of waste may be accounted for by the fact that an employee took the pail outside for some purpose not disclosed. Some witnesses said that the coat was damp "wet like". Others positively denied this. Weiss, one of defendant's witnesses, said that he could tell that the coat had been cleaned because it appeared to be cleaner than when he last saw it. But this was the first and only time decedent ever wore this coat to work, it having just prior to the accident been given to him by a neighbor. Then there was evidence that whenever decedent's coats were cleaned plaintiff did the job herself with five gallons of high test gasoline obtained for the purpose. She and the two older boys testified that the coat had not been cleaned and that it could not have been cleaned in the pail. Significant too is the testimony of Weiss that he examined the floor the next morning and that he found it nice and clean.
Finally it was claimed by defendant that the gloss of the paint on the floor was not removed and that continued use of the carbon tetrachloride would have removed the gloss. But the evidence did not show that cleaning the floors in the manner employed by decedent would necessarily remove the gloss and there was no evidence as to when or how often the floor had been painted.
The case was submitted to the jury on the theory that plaintiff was entitled to recover, if at all, only for defendant's failure to exercise reasonable care in providing the decedent with safe means and place to do his work and that defendant was not liable if decedent assumed the risk or was guilty of contributory negligence. Plaintiff had a verdict of $7,500. Defendant appeals from the order denying its motion in the alternative for judgment or a new trial.
The questions raised by the numerous assignments of error are that no actionable negligence was shown, that decedent's assumption of risk and contributory negligence appear as a matter of law, and misconduct of plaintiff's counsel at the trial.
1. Much emphasized is defendant's claim that it did not authorize decedent to use the carbon tetrachloride for floor cleaning. There is an absence of express authorization. But the authorization need not be express. The case of Haluptzok v. Great Northern Ry. Co., 55 Minn. 446, 57 N.W. 144, 26 L.R.A. 739, is decisive on this point. In that case the question was whether a station agent had authority to employ one O'Connell whose negligent act caused an injury to plaintiff's minor son. O'Connell had been assisting the station agent for about ten days prior to the accident in consideration of his being permitted to use and practice on the telegraphic instruments in the station. For a year or more prior to the accident another helper worked under the same arrangement. There was evidence that the arrangement continued for some time after the accident. The evidence showed conclusively absence of express authority on the part of the station agent to hire helpers. We held that express authority was not necessary, that implied authority sufficed. Mr. Justice Mitchell said: "Such authority may be...
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