Zienke v. Northern Pac. Ry. Co.

• Decision Date: 22 November 1901
• Citation: 66 P. 828,8 Idaho 54
• Parties: ZIENKE v. NORTHERN PACIFIC RAILWAY COMPANY
• Court: Idaho Supreme Court

66 P. 828

8 Idaho 54

ZIENKE v. NORTHERN PACIFIC RAILWAY COMPANY

Supreme Court of Idaho

November 22, 1901

SUFFICIENCY OF EVIDENCE TO SUPPORT VERDICT AND JUDGMENT.-In an action for personal damages, where the evidence wholly fails to support the verdict of a jury and judgment of the court entered thereon, it must be reversed.

DAMAGES-RESPONSIBILITY OF EMPLOYER-FELLOW-SERVANT.-Where the evidence shows that the acts complained of, resulting in the injury, were attributable to a fellow-servant, the employer cannot be held to respond in damages for such injury.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Reversed, with costs to appellant.

H. M Stephens and John M. Bunn, for Appellant.

Authorities on assumption of risk: Drake v. Union P. Ry. Co., 2 Idaho 487, 21 P. 560; Mintu v. Union P. Ry. Co., 2 Idaho 471, 21 P. 660; Bullivant v. City of Spokane, 14 Wash. 577, 45 P. 42; Brunell v. Southern P. Ry Co., 34 Or. 256, 56 P. 129 (this case is very similar to the case at bar); Clark v. Missouri P. Ry. Co., 48 Kan. 654, 29 P. 1138; Long v. Coronado R. Co., 96 Cal. 269, 31 P. 170; Rush v. Missouri P. Ry. Co., 36 Kan. 129, 12 P. 582; Jennings v. Tacoma Ry. & M. Co., 7 Wash. 275, 34 P. 937. Authorities on incompetency of fellow-servants: Plaintiff must show negligence in employing, or that his conduct had been so careless as to charge company with knowledge. Mere evidence of reputation is not evidence of incompetency: McCharles v. Horn Silver M. Co., 10 Utah 470, 37 P. 733. Authorities on contradictory instructions: Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545. Authority on foreman a fellow-servant: Snyder v. Viola Mining Co., 3 Idaho 28, 26 P. 127; Brunell v. Southern P. Ry. Co., 34 Or. 256, 56 P. 129; Willis v. Oregon Ry. & Nav. Co., 11 Or. 257, 4 P. 125; Noyes v. Wood, 102 Cal. 389, 36 P. 766; Donnelly v. San Francisco Bridge Co., 117 Cal. 417, 49 P. 559.

Charles L. Heitman, for Respondent.

In the case of Baltimore etc. R. Co. v. Henthorne, 73 F. 634, 19 C. C. A. 623, the court say: "In an action against a railroad company for damages for personal injuries sustained by an employee of the company in an accident, which some of the evidence tends to show was caused by the drunken condition of the engineer of the train, it is entirely competent to prove the engineer's general reputation for drunkenness and consequent incompetency, for the purpose of showing the railroad company was negligent in retaining him in its employ." (Wabash Railway Co. v. McDaniels, 107 U.S. 454, 2 S.Ct. 932.) "Specifications in a statement on motion for a new trial of the insufficiency of the evidence to justify the verdict must state the particulars in which the evidence is claimed to be insufficient, and a mere general statement that the evidence is insufficient to justify a verdict should be disregarded." (Kyle v. Craig, 125 Cal. 108, 57 P. 791; Demolera v. Martin, 120 Cal. 544, 52 P. 825; Dawson v. Schloss, 93 Cal. 194, 29 P. 31; Taylor v. Bell, 128 Cal. 306, 60 P. 853; Haight v. Tryon, 112 Cal. 4, 44 P. 318.)

STOCKSLAGER, J. Quarles, C. J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, J.

This case is here for review from a judgment of the district court of Kootenai county. The case was tried by a jury, and on January 25, 1900, a verdict was returned in favor of the plaintiff for the sum of $ 1,995. The pleadings are voluminous, and will be referred to here in an abbreviated form, but sufficiently to show the conditions upon which the case was tried. The amended complaint avers: That the defendant is a corporation existing under and by virtue of the laws of Wisconsin, and engaged in operating a line of railroad from St. Paul to the Pacific Ocean, and traverses the entire width of Kootenai county, this state. That the plaintiff is a carpenter by trade, and has been engaged in such business the past thirty years. That from about the 1st of July, 1896, to the 16th of September 1896, both inclusive, he was employed by the defendant as a carpenter upon its bridges or trestles crossing the Lake Pond d'Oreille, in said county, at and for certain hire, and was required, as a part of his duties, to handle lumber with which such bridge or trestle was being built by said defendant; also to unload such lumber from the push car, which was used in bringing said lumber over the tracks to said bridge or trestle. That said bridge or trestle is narrow, and crossed by a single track, and there were no platforms on the side, except at long distances apart on said bridge or trestle, which is more than one mile in length, and its entire length crosses water of great depth. That whilst plaintiff was engaged in such work he was under the direction and control of foremen employed by the defendant, whose orders and instructions it was his duty to obey, to wit, one McAuliffe and one John Holstroem, who were, as plaintiff is informed and believes, vice-principals of defendant, and as he is informed and believes were employed and authorized by the defendant as such foremen and vice-principals. That on or about the sixteenth day of September, 1896, he was at work as such carpenter in defendant's behalf on its said bridge or trestle, and was engaged in handling lumber with which repairs were being made on said bridge or trestle in the following manner, to wit: "Plaintiff was unloading lumber from a push-car belonging to defendant, which was standing on the single track crossing the said bridge or trestle. The plaintiff stood at one end of the said push-car and the other employee at the further end of said push-car, throwing lumber from said push-car on the side of the said bridge or trestle. That while so engaged, and while plaintiff's back, from the necessity of his work, was turned toward the village of Sandpoint, and while plaintiff held in his hands and against his right leg a heavy piece of lumber, about thirty feet long, the said John Holstroem came from the direction of Sandpoint on a hand-car belonging to defendant, over the single track of said bridge or trestle, at the time when the said push-car which plaintiff was unloading was also standing on the single track upon said bridge or trestle. That the plaintiff, from his position and his work in unloading said push-car, could not see or hear the hand-car upon which said John Holstroem was riding over said track, and while said plaintiff was so engaged in the position aforesaid the said John Holstroem drove the said hand-car, loaded with tools, in, over, and upon said single track, without warning to said plaintiff, in a negligent, careless, and unskillful manner, so that the said loaded hand-car was driven against and upon the plaintiff with such force and violence as to press and squeeze plaintiff's right leg at the knee between said hand-car and said heavy piece of lumber then-held by plaintiff in the manner before mentioned with such momentum and weight as to wound and bruise plaintiff's right leg in a most painful and permanent manner. That, as a result of such injury, the plaintiff was treated by a physician or surgeon, and was confined to his bed continuously for about two weeks, and was under treatment for said injury in a hospital for more than five weeks, and from time to time was confined to his bed for about fourteen weeks. That the plaintiff, by reason of said injury, was rendered permanently lame in his right leg, and has grave apprehensions that said leg will eventually have to be amputated. That plaintiff, by reason of said injury, constantly suffers great pain. That he is afflicted with sleeplessness by reason of said pain and suffering, and is unable to perform a full day's labor to support himself and family by his labor as he did prior to the date of said injury." Then follows an allegation that it was the duty of the defendant to furnish for the protection and safety of plaintiff good, safe, and secure places in which to work upon said bridge or trestle, and to provide that timely warning or notice should be given plaintiff while at work, as aforesaid, of the approach of hand-cars and push-cars moving along, over, and upon defendant's single track, or over said bridge or trestle. Avers that defendant conducted its operations in this behalf in so negligent, careless, and unskillful a manner that, although this said bridge or trestle was about one and one-half miles in length, and crossed deep water at a height of from twenty to thirty feet almost its entire length, no sidetrack or other arrangement was constructed or provided upon which a push-car or hand-car could be driven; that his duty required him to keep constantly at work repairing said bridge or trestle; that the defendant conducted itself so negligently, carelessly, and unskillfully that it provided for no notice, warning, or signal to be given of the approach of hand-cars or push-cars; that it was the duty of the defendant, in selecting its servants, employees, or agents, to exercise diligence and care, and only employ such persons as were safe, capable and trustworthy; and avers that said John Holstroem, who drove the hand-car by which plaintiff was injured, was addicted to strong drink and drunkenness to such a degree as to make him unfit, incapable, and unworthy for the position he held under his employment by the defendant, and that such incapability, etc., existed at the time of the injury to plaintiff, and had existed for a long time prior thereto, and were well known to defendant at the time, and for a long time prior thereto, or could, by proper care and diligence, have been known to defendant, and the defendant did not exercise due care and diligence in employing said Holstroem; that plaintiff, at the time of said injury, had been working under said Holstroem for only a short time, and was...