Torgerson v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 23 July 1923
• Citation: 194 N.W. 741,49 N.D. 1096
• Court: North Dakota Supreme Court
• Parties: TORGERSON v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

49 N.D. 1096

194 N.W. 741

TORGERSON

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

June 28, 1923.

Rehearing Denied July 23, 1923.

Syllabus by the Court.

The demurrer admits the truth of all well-pleaded facts, but not necessarily the inferences or conclusions drawn therefrom, though alleged in the complaint; facts presumed or reasonably or necessarily inferred from those alleged are also admitted. Legal conclusions or inferences of fact, which are not presumed or which may not be reasonably or necessarily inferred from the facts alleged, are not admitted by the demurrer.

Where plaintiff, a section hand, of three years' experience as a section hand, was directedto unload grain doors piled in three piles in a box car, and where, after removing the central pile, one of the others toppled over, injuring plaintiff, it is held, for reasons stated in the opinion, that such facts, appearing upon the face of the complaint, do not constitute actionable negligence on the part of the defendant, based upon, (a) failure to furnish a reasonably safe place in which to work, or (b) to instruct and warn servant as to the method of work, or of the danger that a pile might fall when the one in the middle was removed.

Where it appears, on the face of the complaint, that the risk or danger, if any, arises by reason of the actual prosecution of the work, because of change in conditions, and the manner in which the work is from time to time prosecuted, the rule that the master must furnish the servant a reasonably safe place to work has no application.

The duty to warn exists only when the master possesses knowledge of risks or dangers, or should, in the exercise of ordinary care for the servant's safety, have such knowledge, not within the knowledge of the servant or discernible by the latter, in the exercise of ordinary care. There is no liability for failure to anticipate danger to a servant or to warn him thereof, unless the master's knowledge of the danger or opportunity to have knowledge thereof, having in mind the master's primary duty to make inquiry, is superior to that of the servant.

It is not the duty of the master to warn or instruct a servant of ordinary intelligence and experience, with his faculties of observation unimpaired, as to the operation of natural laws.

The allegation that plaintiff did not “know or appreciate the danger to himself in the sudden shifting of the doors” is not necessarily sufficient to make a case for the jury. If a person of ordinary prudence of the age and experience of the plaintiff, in the same or a similar situation, would have known and appreciated the danger and risk, the servant will be deemed, as a matter of law, to have assumed the risk.

When the complaint, upon its face, fails to show actionable negligence on the part of the defendant, and affirmatively shows that the risk was an ordinary one, and was therefore assumed by the plaintiff, a demurrer thereto should be sustained.

Appeal from District Court, Ramsey County; C. W. Buttz, Judge.

Action by Ole Torgerson against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed with leave to amend.

L. R. Nostdal, of Rugby (Knauf & Knauf, of Jamestown, on the brief), for appellant.

Flynn, Traynor & Traynor, of Devils Lake, and J. E. Palmer, of Minneapolis, Minn., for respondent.

JOHNSON, J.

This is an appeal from the order of the district court of Ramsey county, sustaining a demurrer to the complaint.

The plaintiff alleges that for about three years prior to the date of the injury described, he was employed by the defendant as a section hand: That he was 50 years of age; that on or about the 29th day of July, 1921, he was ordered by the foreman of the defendant to unload a box car containing grain doors; “that the said foreman did not inspect the interior of said car or instruct the plaintiff as to the manner in which plaintiff was to proceed with the unloading of said car; that said car was fully loaded with certain grain doors and in the following manner: A pile in the center of the car and two piles on each side thereof. That plaintiff had no previous experience in unloading cars like the car he was ordered to unload; that he did not know and appreciate the danger to himself in the sudden shifting or sliding of the piles of doors during the process of unloading; that he had no reason to anticipate that the piles of doors in either end of the car might, on the removal of the central pile, slide and topple over on him; that an inspection of the place where he was ordered to work would not reveal the imminent danger he would be exposed to; that defendant, through its section foreman, failed to discharge the duty that it owed to plaintiff, its servant, to inspect said premises where plaintiff was ordered to work and to warn plaintiff, prior to his entering the car, of the existing danger of said grain doors suddenly shifting, sliding, or toppling over upon him when the central pile had been removed and he started to work on the next pile.”

Then follow allegations to the effect that the plaintiff proceeded to unload the car and, when he had removed the central pile of doors, a pile next thereto shifted its position and toppled over on plaintiff and injured him before he could escape. The plaintiff then continues:

“That the proximate cause of plaintiff's said injuries suffered by him, as aforesaid, was the failure of the defendant to provide a reasonably safe place in which he was to work and to warn plaintiff before he entered on said work of the existing danger to him while so performing said work hereinbefore referred to; that the existing danger to plaintiff, while performing the work he was so ordered to do, was known, or in the exercise of due care should have been known to the defendant and was not known to the plaintiff and could not have been seen and thereby anticipated by plaintiff upon inspection of the inside of said car before or during the progress of the work he was set to do by the defendant.”

Plaintiff then alleges in general terms that the injuries were occasioned by the negligence of the defendant “as aforesaid” and were not caused by any “contributory negligence on the part of this plaintiff.”

The trial court sustained a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.

Section 7458, C. L. 1913, provides that-

“In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties.”

It is elementary that the complaint must allege facts which show actionable negligence on the part of the master and that the injuries complained of were the proximate result of such negligence. It is also elementary that if the pleading clearly shows on its face that there was no negligence on the part of the defendant, and that the risk was an ordinary risk which the plaintiff assumed as a matter of law, the demurrer was properly sustained. Kommerstad v. Great Northern, 120 Minn. 376, 139 N. W. 713.

[1] A demurrer admits the truth of all well-pleaded facts, but not necessarily the inferences or conclusions drawn therefrom, tho alleged in the complaint; facts presumed or reasonably or necessarily inferred from those alleged are also admitted. 31 Cyc. 335, 336. Legal conclusions or inferences of fact which are not presumed or which may not be reasonably or necessarily inferred from the facts alleged are not admitted by the demurrer.

It will be noticed from the portions of the complaint heretofore set out that the proximate cause of the plaintiff's injury is alleged to be: First, the negligent failure on the part of the defendant to furnish a reasonably safe place in which to work; and, secondly, a negligent failure on the defendant's part to instruct plaintiff how to proceed to unload the doors and to warn plaintiff of the danger that the remaining pile or piles of doors might shift and topple over upon plaintiff, when the central pile was removed. We shall discuss these propositions in the order stated.

[3] Plaintiff alleges:

“That an inspection of the place where he was ordered to work would not reveal the imminent danger he had been exposed to.”

Taking this allegation as true, “the...