Walsh v. St. Paul & Duluth Railroad Company

• Decision Date: 27 December 1880
• Citation: 8 N.W. 145,27 Minn. 367
• Parties: Patrick Walsh v. St. Paul & Duluth Railroad Company
• Court: Minnesota Supreme Court

8 N.W. 145

27 Minn. 367

Patrick Walsh v. St. Paul & Duluth Railroad Company

Supreme Court of Minnesota

December 27, 1880

Appeal by plaintiff from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial. The case is stated in the opinion.

Order affirmed.

S. L Pierce, for appellant.

The negligence of Brown (who had charge of the warehouse) was the negligence of defendant, since Brown was defendant's representative in that department of its business. As the risk in this case was of a special nature, not patent in the work, and of which plaintiff was not cognizant, it was Brown's duty specially to notify him of the risk. Lake Shore & Michigan Southern R. Co. v Fitzpatrick, 31 Ohio St. 479; Walsh v. Peet Valve Co., 110 Mass. 23; Hough v. Railway Co., 100 U.S. 213. Whether the plaintiff did or did not understand and appreciate the danger of removing the millstone, with the number of servants furnished and his inexperience, was a question peculiarly for the jury. Lake Shore & M. S. R Co. v. Fitzpatrick, 31 Ohio St. 479; Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99; Mayo v. Boston, etc., R. Co., 104 Mass. 137; Stoddard v St. Louis, etc., Ry. Co., 65 Mo. 514; Greenleaf v. Railroad Co., 29 Iowa 14. Plaintiff acted under orders of the defendant or its representative given upon the spot, which he had a right to suppose would not have been given if it was considered unsafe for him to follow them. Walsh v. Peet Valve Co., 110 Mass. 23; Chicago & Northwestern Ry. Co. v. Bayfield, 37 Mich. 205; 2 Thompson on Negligence, 974.

James Smith, Jr., for respondent.

OPINION

Berry, J.

The plaintiff was employed by defendant to work in and about its warehouse or freight depot. He testifies in one place that he was employed "to handle freight -- load and unload -- whatever there was to be done around;" and again, that he "had to handle boxes and sacks and everything else;" and again, in answer to the question "You were employed to do whatever freightage was done either in loading or unloading cars?" he replied, "Yes, sir, anything, anything. I handled all kinds of freight, and that was what I was employed for." It appeared from his testimony that he commenced working in the warehouse about six years before the action hereinafter mentioned; that for four years before the accident he had not been away from it "any length of time," and that at the time of the accident he was 25 or 26 years of age. While engaged with other employes of defendant in moving a millstone from the scales in the warehouse to a car standing by the outside platform of the warehouse, he received the injury for which he seeks to recover damages in this action. The stone weighed from 1,500 to 2,000 pounds, and, being a top stone, it had a "bulge" on one side, the other being flat. The floor of the warehouse and of the platform at the place where the stone was rolled on its way to the car was uneven.

The plaintiff claims that the moving of a stone of this kind and weight, with safety to the persons moving it, requires in such persons, or at least in some person under whose immediate and personal direction it is done, experience in doing that particular kind of work; that on account of the great weight, the round form, and the bulge upon one side dangers attend the moving of such stones, which none but such an expert can be expected to be acquainted with. He also claims that they cannot be moved over an uneven surface without great danger to the persons moving them, and, further, that to move them with safety to such persons more men are required than were actually engaged in moving the stone in question. The plaintiff claims that defendant was guilty of negligence in failing to...