Viou v. Brooks-Scanlon Lumber Company
| Decision Date | 27 July 1906 |
| Docket Number | 14,794 - (136) |
| Citation | 108 N.W. 891,99 Minn. 97 |
| Parties | NOAH C. VIOU v. BROOKS-SCANLON LUMBER COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Carlton county to recover $21,700 for personal injuries. The case was tried before Dibell, J and a 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.
Injury to Foreman.
Plaintiff a foreman in a lumber mill, was hurt by a tram car falling from a bridge into a ravine over which the track ran. Plaintiff was engaged in removing from that ravine other cars which had previously fallen from the same track at the same place.
Promise of Master to Remedy Defect.
The evidence showed a sufficient expression of appreciation of personal danger to the servant to bring the case within the ordinary rule, which justifies a servant in continuing in a dangerous employment because of reliance upon the promise of the master to remedy a defect in instrumentalities or place of work in answer to a complaint made by the servant. That the servant who complained to the superintendent of the mill of the danger arising from the original design of the track and bridge was a foreman with much power over other employees, and their work, did not place him outside of the class of persons to whom the master owed the duty of exercising reasonable care in providing a safe place and instrumentalities for work.
Contributory Negligence.
The danger that a car might fall from the bridge upon the plaintiff at work in the ravine below was not so certain and imminent that as a matter of law he was guilty of contributory negligence in failing to provide against such contingency.
Negligence of Physician.
The mere fact that injuries caused by the negligence of the person sought to be charged have been increased by the negligence of an attending physician does not relieve that person of consequent liability. Nor does the fact that, before suit is brought against such person, the injured person settled a claim against his attending physician for malpractice operate to relieve the person originally guilty of negligence, of liability.
Settlement with Physician -- Award not Excessive.
In this case plaintiff settled a claim for malpractice by the physician who treated his injuries caused by defendant's negligence for $242.40. The court charged the jury as follows: A verdict of $12,500 was reduced by the court to $8,500, which was accepted by the plaintiff. It is held that the charge of the court contained no just ground of complaint by the defendant, and that the final award of damages was not excessive nor void, because plaintiff did not bear the burden of tracing his damages to defendant as their proximate cause or because they rested on mere guesswork or conjecture.
Indemnity Insurance -- Interest of Jurors and Witnesses.
The connection of an indemnity insurance company with the defense of a personal injury action may or may not be a collateral issue. The interest or connection of jurors and of witnesses in an insurance company interested in the result of a lawsuit, is a proper matter for inquiry by plaintiff, and within reasonable limits plaintiff will be protected in the exercise of his right to make such inquiries, and, strictly within the right, admissions by the defendant may be received although indirectly involving such a company.
Indemnity Insurance -- Inquiries of Counsel.
In this case plaintiff, to lay the foundation for such interrogation of jurors, served notice to produce a described insurance policy, and, when it was not produced, examined a supposed representative of the insurance company, in the presence of the jury, as to the connection of the insurance company with the defense. The only issue presented by the motion before the court, and in this court by assignments of error, was the good faith of counsel in making these inquiries. It is held that the record showed the exercise of good faith.
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...
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