Viou v. Brooks-Scanlon Lumber Co.
| Decision Date | 27 July 1906 |
| Docket Number | Nos. 14,794 - (136).,s. 14,794 - (136). |
| Citation | 99 Minn. 97 |
| Parties | NOAH C. VIOU v. BROOKS-SCANLON LUMBER COMPANY.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
jury, which rendered a verdict in favor of plaintiff for $12,500. From an order denying a motion for judgment notwithstanding the verdict, and granting a motion for a new trial unless plaintiff consented to reduce the verdict to $8,500, defendant appealed. Affirmed.
Davis & Hollister and W. D. Dwyer, for appellant.
Howard T. Abbott and Morton Barrows, for respondent.
The plaintiff and respondent was a foreman in a sawmill of the defendant and appellant. Certain slabs and certain board ends were conveyed to different yards east of the mill by means of horse cars drawn over iron rails laid for that purpose. The track over which the cars passed crossed a small ravine over which was a narrow bridge on a sharp curve. A switch was placed on this bridge so that tram cars carrying slabs might follow one curve to the yard where they were to be deposited, and so that on another curve the board ends might be carried to the other yard where they were to be deposited. The bridge was but a few inches wider than the track. Two empty slab cars in passing over the bridge had fallen from it and into the ravine. While the plaintiff was engaged in removing these cars, a car coming from the board end ran off the track at the bridge, fell from it into the ravine, struck plaintiff across the back and hip, and produced the injuries for which this action was brought. The jury brought in a verdict for $12,500. The trial court refused appellant's motion for judgment, notwithstanding the verdict, and granted its motion for a new trial, unless respondent should consent to a reduction of the verdict to the sum of $8,500. To this reduction the plaintiff duly consented. The defendant appealed from the order overruling the motions.
1. The defendant insists that the plaintiff knew the dangers of the place in which he was working, assumed its risk, and that there was no promise to repair for his benefit upon which he should have relied.
The testimony shows that some ten days prior to the accident, the plaintiff had a conversation with his official superior, the superintendent of the mill, in which he called attention to the fact that the curve was too short, and that he was having trouble there all the time. At one place he testified that in this conversation, he also said that "somebody is going to get hurt here." To this the superintendent replied, "Well we will fix it the first chance we get." The defendant argues that there was not in this interview one single word or sentence which shows that the plaintiff had his own safety in view at any time during the conversation, and that there was nothing to show that the master and servant had in view either a transfer of the risk from the servant to the master or the removal of the dangerous condition as a protection to the servant. In support of this testimony, inter alia, he cites Lewis v. New York, 153 Mass. 73, 26 N. E. 431, 10 L. R. A. 513, in which the servant said to the superintendent that the pier where the accident happened "was in a very bad condition indeed; that strangers would be apt to fall through there." This was held not to have been a complaint on the servant's own account; he therefore assumed the risk consequent upon breaking through a rotten place in the planking on that pier. And see Wilson v. Winona & St. P. R. Co., 37 Minn. 326, 33 N. W. 908, 5 Am. St. 851; Industrial v. Johnson, 22 Tex. Civ. App. 596, 55 S. W. 362; International v. Turner (Tex. Civ. App.) 23 S. W. 146.
This contention would have been very forcible if this testimony, which was brought out of the plaintiff upon direct examination, were all the record shows on this point. Upon cross-examination, however, plaintiff testified that he started talking about the bridge and the superintendent asked him what the trouble was,
And I says, "the cars keep running off here, can't keep them on the track." I says, "some of us here going to get hurt here."
There was testimony to the effect that plaintiff often rode across the bridge. The record showed a sufficient expression of apprehension of personal danger to the servant to differentiate this case from the cases cited and to bring it within the ordinary rule of submission to the jury.
The defendant further argues that the plaintiff was a general foreman and that his complaint was made as such, not for the protection of himself, but for the protection of the appellant company. It is true that the plaintiff had large powers, to hire and discharge men, and extensive control over men, teams, cars, tracks, and everything pertaining to the business. The plaintiff, however, because he was a foreman, was not beyond the scope of that duty which requires the master "to furnish his servant with safe instrumentalities and appliances for the performance of their work (and which) applies to a foreman or superintendent as well as to a servant without rank or title." Attix v. Minn. Sandstone Co., 85 Minn. 142, 88 N. W. 436. He had a right to complain of the peril to himself and to rely upon the promise of his official superior to repair a defect in the plan of the track adopted and put in operation by the master and beyond the immediate authority of the complaining employee to change. It appeared from the evidence that the plaintiff, of his own suggestion, had greased the rails at this point and had put in a guard rail to keep cars from getting off the track. We conclude that the plaintiff did not assume this risk as a matter of law.
2. Defendant further insists that plaintiff was guilty of negligence which contributed to his injury by reason of which he could not recover.
Before he went down the ravine with the men and horses for the purpose of placing the cars back on the track, he had "let a couple of slab cars out" and they went on safely. He says that he did not know that there was a car out on the board end, but this he might easily have ascertained. He could have left a man on top of the bridge and have directed that man not to allow any cars to cross the bridge while he was at work beneath. The argument is that he was guilty of contributory negligence by breach of his duty to see that no cars went over the bridge while he and the men under his charge were at work underneath. The plaintiff knew without question that certain cars jumped off the track. The defendant's brief quotes his testimony in connection with his complaint to his superior thus: "I told him all the cars kept running off there." The record shows that the testimony at this place was, "I told him the cars kept running off there." Other parts of the testimony show that while more than a score of round trips were made daily by cars going to the slab yard and a lesser number to the board end, only a few cars every day or two for a period of about two weeks before the accident left the track, not the bridge, at the point of defect. Our attention has not been called to any testimony, nor have we been able to find testimony, showing that, except as to the cars in the ravine and the car which struck plaintiff, any car had fallen off the bridge into the ravine below. The danger was not so imminent or certain as to require plaintiff to protect against it as a matter of law. The question of plaintiff's contributory negligence in not putting a man at guard to prevent the passage on the track was properly for the jury.
3. The defendant also insists that the damages were excessive and unjustified.
The plaintiff's hip was dislocated and his back and legs hurt. He was given chloroform shortly after the accident, and his hip was set. The hip bone afterwards came out of the socket and was reset without the use of an anæsthetic. It subsequently again came out of the socket and was again reset without an anæsthetic. Extreme agony accompanied these operations. His injuries were permanent. At the time of trial he necessarily wore a steel brace running from his hip down to his shoe to support his leg. No question as to the propriety of the amount of the verdict would be reasonable were it not for this further contention of the defendant, namely, that the evidence showed a claim by plaintiff for damages against his attending physician for malpractice in connection with the treatment of his hip injured by the accident here in issue and a settlement of that claim by an indemnity insurance company for the physician by the payment of $242.50; that the evidence, in addition to this admission of malpractice, showed that plaintiff's condition at the time of trial and all damages flowing therefrom were not the result of the original accident, but of such malpractice; and that, upon the whole record, the trial court erroneously submitted the question of damages to the jury because plaintiff had not borne the burden of proof resting upon him to show the extent of damages for which the defendant was responsible, by reason of which the verdict of the jury could rest on nothing but vague guesswork and unreliable conjecture.
In point of fact, apart from the settlement of plaintiff's claim against the attending physician, the evidence not only does not conclusively show malpractice, but it does not much more than sufficiently present to the jury any issue on that subject. The expert called by the defendant, upon whose testimony he relies, in this aspect of the case, testified at one place that proper treatment of a simple dislocation of the hip, which he expressly assumed this to have been, would ordinarily result in a complete recovery within three months. At another place, however, the same expert testified that "some cases of simple dislocation are never fully recovered." The assumption in this testimony that the present case was one of simple dislocation was...
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