Vanevery v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Co.

• Decision Date: 26 November 1918
• Court: North Dakota Supreme Court

171 N.W. 610

41 N.D. 599

ALLEN VANEVERY, Respondent, v. MINNEAPOLIS, ST. PAUL, & SAULT STE. MARIE RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of North Dakota

November 26, 1918

Petition for rehearing February 27, 1919.

Appeal from the District Court of Ward County, Honorable K. E Leighton, Judge.

Judgment for plaintiff. Defendant appeals.

Reversed and dismissed.

Judgment reversed and action dismissed.

John E Greene and John L. Erdall (Alfred H. Bright, of counsel), for appellant.

It is not clear from the decisions of the Federal Supreme Court just what work is so connected with interstate commerce as to give an employee the benefit of the Federal Employers' Liability Act. 35 U.S. Stat. at L. 65 et seq.; Comp. Stat. §§ 8657 et seq.; N.Y. Cent. R. Co. v. Carr, 238 U.S. 260; C. B. & Q. R. Co. v. Harrington, 241 U.S. 177, 60 L.Ed. 942; Shanks v. Del. L. & W. R. Co. 239 U.S. 556, 60 L.Ed. 436; Illinois C. R. Co. v. Behrens, 233 U.S. 473, 58 L.Ed. 1051; Erie R. Co. v. Welsh, 242 U.S. 303, 61 L.Ed. 319; M. & St. L. R. Co. v. Winters, 242 U.S. 353, 61 L.Ed. 358; Lehigh V. R. Co. v. Barlow, 244 U.S. 183, 61 L.Ed. 1070.

The railroad is not required to exercise toward its employees that high degree of care required of a carrier of passengers with respect to the safety of its passengers. 4 Thomp. Neg. §§ 3773, 3767; Armour & Co. v. Russell, 6 L.R.A.(N.S.) 603, 604, and see extended notes pp. 602-609 (C.C.A.) 144 F. 614.

The master is not required to furnish a place to work that is absolutely safe, or the safest possible place, but only one that is reasonably safe. Streeter v. West Wheeled Scraper Co. 250 Ill. 244, Ann. Cas. 1913, chap. 204; 4 Thomp. Neg. § 2773; Jungnitz v. Mich. &c. Iron Co. 105 Mich. 270, 63 N.W. 296; Stiller v. Bohn Mfg. Co. 80 Minn. 1, 82 N.W. 982; Wood, Mast. & S. § 331; Bailey, Mast. & S. § 57; 26 Cyc. 1106, 1107.

For plaintiff to show that he has been injured under circumstances which may lead to a suspicion or fair inference of negligence on the part of defendant is not sufficient, he must go on and give evidence of some specific act of negligence on the part of the defendant. Longegrove v. London &c. R. Co. 16 C. B. N. S. 692; 4 Thomp. Neg. § 3865; Lane v. R. Co. 64 Kan. 755, 78 P. 626; Reed v. Boston R. Co. 164 Mass. 129, 41 N.E. 64.

One who knowing and appreciating a danger voluntarily assumes the risk of it cannot complain against another who is primarily responsible for the existence of the danger. O'Malley v. Boston Gaslight Co. 47 L.R.A. 161; Streeter v. Western Wheeled Scraper Co. 250 Ill. 244, Ann. Cas. 1913C, 204; American Bridge Co. v. Valente, Delaware, 73 A. 400.

A verdict of $ 10,000 in this action is unwarranted by the evidence. Clark v. Brooklyn Heights R. Co. 78 A.D. 478, 76 N.Y.S. 811; Waterman v. M. St. P. & S. Ste. M. R. Co. 26 N.D. 548.

E. R. Sinkler and Greenleaf, Wooledge, & Lesk, for respondent.

It is immaterial whether plaintiff was engaged in intrastate or interstate commerce. Fed. Employers Liability Act, § 3; N.D. Employers Liability Act, § 2; Kansas City W. R. Co. v. McAdow, 240 U.S. 51, 60 L.Ed. 520; Chicago & N.W. R. Co. v. Gray, 237 U.S. 399, 59 L.Ed. 1018, 9 N. C.C.A. 452; Eley v. C. G. W. R. Co. 166 N.W. 740; Wabash R. Co. v. Hayes, 234 U.S. 86, 6 N. C.C.A. 224; Troxell v. Delaware R. Co. 185 F. 540; Galveston R. Co. v. Averill (Tex.) 136 S.W. 98.

Plaintiff's work was interstate commerce. N.Y. C. R. Co. v. Winfield, 244 U.S. 147, 61 L.Ed. 1045, 14 N. C.C.A. 680; So. R. Co. v. Puckett, 244 U.S. 571, 61 L.Ed. 1321; Kamboris v. Oregon, W. R. & Nav. Co. 146 P. 1097; C. R. I. & P. R. Co. v. Bond (Okla.) 148 P. 103; So. R. Co. v. Peters (Ala.) 69 So. 611; So. P. Co. v. Pillsbury (Cal.) 151 P. 277; Grybowske v. Erie R. Co. (N. J.) 95 A. 764; So. P. Co. v. Industrial Acci. Commission, L.R.A.1917E, 262, 161 P. 1139; Sears v. Atlantic C. L. R. Co. (N. C.) 86 S.E. 176; Mattocks v. C. & A. R. 187 Ill.App. 529; Tralich v. C. M. & St. P. R. 217 F. 675; Lombard v. Boston & M. R. Co. 223 F. 427; Ross v. Sheldon (Iowa) 154 N.W. 499; C. C. & St. L. R. Co. v. Farmers Trust Co. 108 N.E. 108.

Negligence and assumption of risk are for the jury. O'Driscoll v. Faxon, 156 Mass. 527, 31 N.E. 685; Blondin v. Oolite Quarry Co. (Ind.) 37 N.E. 812, affirmed on rehearing 39 N.E. 200; Wood v. Victor Mfg. Co. 66 S.C. 482, 45 S.E. 81, 14 Am. Neg. Rep. 629; Wyldes v. Patterson, 24 N.D. 218, 139 N.W. 577; Messenger v. Valley City St. R. Co. 21 N.D. 82, 32 L.R.A.(N.S.) 881, 128 N.W. 1023; Davy v. G. N. R. Co. 21 N.D. 43, 128 N.W. 311; Umstad v. Colgate Farmers Elevator Co. 18 N.D. 309, 122 N.W. 390; Cameron v. G. N. R. Co. 8 N.D. 124, 77 N.W. 1016; Stone v. N. P. R. Co. 29 N.D. 496, 151 N.W. 36; Messer v. Bruening, 32 N.D. 515, 156 N.W. 241; Olson v. Gray, 147 Cal. 112, 81 P. 415; Bessex v. C. & N.W. R. 45 Wis. 477; John Spry Lumber Co. v. Duggan, 182 Ill. 218, 54 N.E. 1002; Kennedy v. L. S. R. Co. 93 Wis. 32, 66 N.W. 1137; U. P. R. Co. v. Erickson, 41 Neb. 1, 59 N.W. 347; Cintek v. Stimpson R. Co. (Wash.) 37 P. 340; Libbey v. Scherman (Ill.) 34 N.E. 801; McCauley v. Norcross (Mass.) 30 N.E. 464.

The damages awarded plaintiff were not excessive. Pratt v. Pioneer Press Co. (Minn.) 20 N.W. 87; Stutz v. Chic. N.W. R. (Wis.) 40 N.W. 657; Bowers v. U. P. R. Co. 4 Utah, 215, 7 P. 251; Morgan v. So. P. Co. (Cal.) 30 P. 601; Scottowe v. Oregon S. L. R. Co. 30 P. 222; Gennaux v. N.W. I. Co. 72 Wash. 268, 130 P. 495; Chicago & E. I. R. Co. v. Holland, 18 Ill.App. 418; Reddon v. U. P. R. Co. 5 Utah, 233, 145 U.S. 657, 36 L.Ed. 48; Cooper v. St. Paul City R. Co. 54 Minn. 379; Marks v. Hurley, 73 Wash. 437, 131 P. 1122; Mulhollan v. Western Gas Co. (Cal.) 131 P. 110; Yellow Pine Co. v. Lyons (Tex.) 159 S.W. 909; Dolphin v. Peacock Min. Co. (Wis.) 144 N.W. 112; Houston & T. C. R. v. Menefee (Tex.) 162 S.W. 1038.

ROBINSON, J. GRACE, J. (dissenting).

OPINION

ROBINSON, J.

This is a personal injury suit in which defendant appeals from a verdict and judgment for $ 10,000.

In January, 1916, at Minot, the plaintiff was in the employ of defendant, and his daily business was to shovel coal so as to fill the tender of a switch engine. At the close of each day the engine and tender was spotted opposite the coaling dock and in such a way as to make it most convenient to throw the coal onto the tender. The dock was of timber and planks. It was 44 by 11 1/2 feet. The longest side was parallel to the railroad track and at a proper distance of 18 inches from the side of the spotted tender. The coaling dock was constructed and it was loaded with a view of making it easy to throw the coal into the tender. Its floor was about 3 feet above the ground and on a level with the floor of the engine and tender. The sides and ends were made of planks to prevent the coal from rolling off. The farthest side had five tiers of planks, and the nearest side, one tier of 10-inch planks, which were 2 or 3 inches thick.

On the night of the accident the dock was loaded with coal to a depth of about 5 feet in the center, and, excepting a clear space of about 10 feet at each end, the coal was plumb up and a little above the level of each side. On the lower side it was probably a little heapy. On the east end of the dock the plaintiff got onto the clear floor and for one hour he shoveled coal into the tender. Then he got off, went to the adjacent roundhouse, and on returning to the place where he had left his shovel, instead of getting onto the clear platform where he got off, he attempted to return by walking on the edge of the 10-inch plank. With a lighted torch lamp in his right hand he stepped from the gangway of the cab or tender onto the plank which was heaped with coal. The distance was 18 inches, and as he says: "You would have to use a little force to make the step." Of course he had to step against the coal with both feet, and the result was that the coal commenced rolling onto the edge of the plank. Then he had no footing and as a natural result he fell 3 feet between the dock and the tender and was badly hurt, though he was able to get up and walk home. There was no occasion or necessity for plaintiff to walk the edge of the plank; it was never made for that purpose. During four months the plaintiff had been working at the business, and he knew well the conditions of the dock and the coaling. There is not a particle of evidence to show that the coaling dock was in any way defective or that the defendant, or anyone of defendant's agents, was at fault.

Under the statute an employer must in all cases indemnify his employee for losses caused by the former's want of ordinary care.

An employer is not bound to indemnify his employee for losses suffered in consequence of the ordinary risks of the business in which he is employed. Section 6107.

But plaintiff claims under the Employers' Liability Act, which is to the effect that a common carrier, engaged in interstate commerce, is liable in damages to any person suffering injury while he is employed by such carrier in such commerce, for an injury resulting in whole or in part from the negligence of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, warehouses, or other equipment. And in such action the negligence of the employee is not a bar to any recovery, and he is not held to have assumed the risk of his employment.

However in this case it appears to the writer of this opinion that the plaintiff was not employed in interstate commerce. The majority are agreed, however, that the accident was not the result of any fault or want of care on the part of the defendant or its employees. It was the result of the plaintiff...