Weisel v. E. Ry. Co. of Minn.

• Decision Date: 19 April 1900
• Citation: 82 N.W. 576,79 Minn. 245
• Parties: WEISEL v. EASTERN RY. CO. OF MINNESOTA.
• Court: Minnesota Supreme Court

79 Minn. 245

82 N.W. 576

WEISEL

v.EASTERN RY. CO. OF MINNESOTA.

Supreme Court of Minnesota.

April 19, 1900.

Appeal from district court, Carlton county; William A. Cant, Judge.

Action by Conrad Weisel against the Eastern Railway Company of Minnesota. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Reversed.

Syllabus by the Court

1. Plaintiff, a common laborer, in the line of his duty, was at work for defendant putting a hose upon the tender of an engine, which was loaded with coal, and standing still. At the same time another servant was standing upon the loose coal on the tender to receive the hose from his fellow servant on the ground, when a lump of coal was dislodged from the tender, and fell upon and injured the plaintiff. Held, upon a claim that defendant was negligent in overloading the engine with coal, and thereby responsible for plaintiff's injury, that its acts in this respect where not the proximate cause of the accident, and did not constitute actionable negligence for which a recovery can be had.

2. Under the facts in this case the dangers to which plaintiff was subjected when he was injured were not peculiarly and distinctively railroad hazards, and the injuries caused by the negligence of his fellow servants would not entitle him to recover therefor from his employer.C. Wellington and J. A. Murphy, for appellant.

Windom & McMahon and O'Brien & Vaughn, for respondent.

LOVELY, J.

This action is for injuries received by plaintiff while at work as a common laborer in and about defendant's gravel pit on its railroad near Nickerson, in this state. He had a verdict. Defendant moved for a new trial upon a settled case. The motion was denied by the trial court, from which order defendant appeals, and brings the whole record into this court for review.

The plaintiff was one of a crew of men attending upon a steam shovel in the gravel pit, which was being operated with the customary equipments for loading and hauling gravel from the pit to the main line of defendant's road. At the time when plaintiff was injured he had been at work four or five days performing such ordinary and common duties of his employment as were required, among which was the aid he was required to give in the task of transmitting water from a locomotive (brought into the pit for that purpose) to the steam shovel, in which particular service he received his injuries. The steam shovel had to take the water it used from a locomotive, there being no other means of supply at the pit, and the locomotive furnishing it would run into the pit near the shovel, a hose would be attached to the locomotive, and from thence conducted to the boiler of the steam shovel, and, with the aid of a siphon attachment, when this connection was made the requisite amount of water would, under steam pressure, be forced from the locomotive to the shovel. In pursuance of the usual custom at the time in question, the locomotive, with its tender loaded with coal, came into the pit to supply the shovel, and stopped on the track, where it remained stationary until after the injury. It then became the duty of plaintiff, with the assistance of another laborer, to take up the hose with the siphon attached, and hand it to another employé, one William Dunn, who at this time stood on the loose coal upon the tender. In lifting the hose from the ground to Dunn, and at the moment when it was being...