Lundquist v. Railway Co.

In the first one the law of fellow servants was not involved, for the plaintiff in that case was not a servant of the railway company, but of an independent contractor. The remark quoted in his brief by counsel, from the opinion and syllabus of the case cited, to the effect that the duty of the defendant to plaintiff in respect to giving proper signals of the approach of trains was the same whether the plaintiff was in its employment or that of its contractor, means only that the railway company owed the same obligations to exercise care for the safety of an employe of a contractor working on or near its tracks as it would if he was its own employe. It is to be remembered that the case arose and the opinion was written after chapter 13, Laws 1887 (defining the liabilities of railroad companies for injuries to their servants by the negligence of fellow servants), was enacted. In the second case cited the negligence of the employe of one person resulted in the injury of an employe of another. No question of fellow servant was involved. The third case related to the duty of a railroad company to a traveler to give its usual signals of the approach of its trains at a private wagon crossing. The last case cited arose after chapter 13, Laws 1887, became a law. The plaintiff and the motorman in the case at bar were fellow servants. Neal v. No. Pac. R. Co., 57 Minn. 365. The plaintiff was injured by the negligence of the motorman in failing to give any signal of the approach of the car, or to slacken its speed, as it was his duty to do. But such duties did not appertain to the work of furnishing, constructing or equipping a safe place for work or safe machinery for the execution of the work, but to the operation of the street railway; hence his negli. gence on the premises was that of a fellow servant, and the plaintiff cannot recover.

The plaintiff further claims that the fact that the car

Lundquist v. Railway Co.

which struck him was being run at the time at a rate of speed exceeding six miles an hour, in violation of law, renders the defendant's liability for his injuries absolute. Statutes and ordinances regulating the speed of railway trains, providing for the giving of signals at crossings, and for fencing the right of way, do not abrogate the qualifying principle of the common law relating to contributory negligence, assumption of risks and injuries by the negli gence of fellow servants. Randall v. B. & O. R. Co., 109 U. S. 478; Fleming v. St. Paul & Duluth R. Co., 27 Minn. 111; Johnson v. Chicago, Milwaukee & St. P. R. Co., 29 Minn. 425; Moser v. St. Paul & Duluth R. Co., 42 Minn. 480. The fact that one of the acts of negligence of the motorman complained of in this case was prohibited by law does not affect the question of the liability of the defendant to the plaintiff for injuries resulting solely from the negligence of his fellow servant. Order affirmed.

NOTE 1.- In the twelve cases preceding this note, damages were sought against electric companies for injuries caused to their employes. In the first six of these cases, the injury was by electric shock. In most of the cases, the decision turned wholly or in part upon the peculiar rules governing the relation of master and servant, in case of injury to the latter, as distinguished from cases of alleged negligence resulting in injury to persons not employes.

Thus, the rule that the employer must furnish reasonably safe machinery and appliances is applied in W. U. Tel. Co. v. McMullen, ante, p. 33S; Lincoln St. Ry. Co. v. Cox, ante, p. 352, and Windover v. Troy City Ry. Co., ante, p. 381. In Harroun v. Brush Elec. Lt. Co., ante, p. 357, it is stated that the degree of diligence required of the employer increases with the danger and hazard necessarily connected with the use of the appli ances. And in McAdam v. Central Ry. & Elec. Co., ante, p. 348, that electric railway companies are bound to a very high degree of care to protect their employes and the public alike from the dangers of uninsulated trolley wires. The rule above stated has negative application in Yearsley v. Sunset Teleph. & Tel. Co., ante, p. 368, in which it was held that a tree upon private property, from which a lineman fell and was injured, was not an appliance furnished by the company employing him, and hence it incurred no liability.

Lundquist v. Railway Co.

The rule that the servant assumes the ordinary risks of his employment is applied or laid down in W. U. Tel. Co. v. McMullen, ante, p. 338; Dixon v. W. U. Tel. Co., ante, p. 370, and Denver Tramway Co. v. Nesbit, ante, p. 373.

That a servant assumes the risk of obvious dangers and cannot recover for injuries due to defective appliances of which he had knowledge, is illustrated in Pierce v. Camden, &c. Ry. Co., ante, p. 377, and Windover v. Troy City Ry. Co., ante, p. 381. In the latter case it was held that the motorman who was killed must have had knowledge of a defective brake, but that as it did not appear that he knew the need of sand on the track, he did not assume the risk of the company's failure to provide a sandman.

That one employe cannot recover against the company for injuries resulting from the negligence of a co-employe is the gist of the decision in Lundquist v. Duluth St. Ry. Co., ante, p. 388.

NOTE-2. The following are memoranda of additional cases upon the same general subject and illustrating the same principles:

In John C. Greene v. W. U. Tel. Co., United States Circuit Court, District of Minnesota, March 11, 1896 (72 Fed. Rep. 250), an action for damages for injury to a lineman who while engaged, with other employes, under a foreman in erecting telegraph poles, was injured by the falling of an insufficiently guyed pole which he had climbed by order of the foreman, the following is the language of the court in directing a verdict for the defendant:

"The COURT: I think this was a risk that the plaintiff assumed when he was hired. It was a part of his duty. He was not only to help erect and climb poles and string wires, but to help put up those gin poles. While the business may have been a hazardous one, he assumed the ordinary risks incident thereto, and among them that of a pole not being properly guyed, owing to negligence on the part of his fellow workmen. Conceding that the foreman was a representative of the company, I do not think it has anything to do with the case. Plaintiff was not taken from any particular duty and put into one that he was not hired to do, which was extra hazardous, and unnecessarily exposed him to a danger which he did not contemplate by virtue of his employment; but he was hired to do just what he was ordered to do, and in so doing the accident happened. I think this man was injured by a risk which he assumed by virtue of his employment, and I instruct you that the defendant is entitled to your verdict."

In Bland v. Shreveport Belt Ry. Co., Louisiana Supreme Court, June 15, 1896 (48 La Ann. 257), in which a lineman while taking down a guy wire from a pole which had been insecurely planted was killed by the falling of the pole upon him, it appeared that the vice of construction was concealed, and that the officers of a preceding board of management had been notified of the defect. Held, that the company could not excuse

Lundquist v. Railway Co.

itself on the plea of want of notice; that the lineman did not voluntarily place himself in a dangerous position, and was bound to know only patent defects; that the master did not perform his duty of furnishing suitable appliances.

In Atlantic Ave. Ry. Co. v. Van Dyke, United States Circuit Court of Appeals, Second Circuit, Feb. 20, 1896 (72 Fed. Rep. 458), the plaintiff was a lineman who, while at work on a tower wagon making repairs to the wires of the defendant's trolley road, was knocked from the tower wagon and injured by a car. There was evidence of an attempt to stop the car, and a question arose as to the sufficiency of the appliances for doing so quickly. Held, proper to submit this question to the jury, with the instruction that the defendant was not bound to provide the very best appliances, but only such as reasonable and prudent men would provide. In Louise J. Sundy v. Savannah St. Railroad, Georgia Supreme Court, Oct. 5, 1895 (96 Ga. 819), it appeared that the husband of plaintiff was a motorman in the employ of the defendant; that while standing upon the step of his car, with his back to a pole standing from twelve to eighteen inches from the car, and examining some part of the car, he was struck on the head by the pole and killed. He knew the location of the pole and could have seen it before reaching it. After the accident the pole was moved so as to stand about twice as far from the track. Judgment of non-suit was affirmed.

In Whipple v. N. Y., N. H. & Hartford Railroad Co. and Crandell v. Same, Rhode Island Supreme Court, July 24, 1896 (35 Atl. Rep. 305, 307, respectively), substantially the same questions were decided in each case, viz., that the erection of a telegraph pole by railroad company so near its track as to endanger its employes while performing their duties, is negligence; and that an employe ignorant of the dangerous condition and using ordinary care cannot be said to have assumed such risk as incident to his employment.

In Kenneson v. West End St. Ry. Co., Massachusetts Supreme Judicial Court, Feb. 25, 1897, the following is nearly the entire opinion:

HOLMES, J.: This is an action for running over the plaintiff's intestate with an electric car on which he was employed as motorman. The car had reached its destination, Somerville. The conductor went to the Somerville end, shifted the trolley and pushed in the fender. The deceased took off the motor handles and gong tapper, went to the other end, which now would be the front of the car, and was seen to stoop down, and take hold of the fender. Very shortly afterwards, the car started, and he was caught under the wheels, and fatally injured. What caused the car to start is wholly uncertain. See Ross v. Cordage Co., 164 Mass. 257. It is suggested that the car was defective, but there is no satisfactory evidence that it was, or, if it was, that the defect was or ought to have been known to the defendant, or that it was of such a nature as to be likely to cause the start. It is equally or more likely that the car moved after the trolley was turned and readjusted, because the electricity had not been fully shut

Redfield v. Railway Co.

off, or because the deceased in some way moved the cable under the car which let on the power. The presiding judge was right in taking the case from the jury.

In Baltimore Trust, &c. Co. v. Atlantic Traction Co., United States Circuit Court, Northern District of Georgia, June 6, 1895 (69 Fed. Rep 358), held that the conductors of two electric railway cars on the same road are fellow servants, and that the common employer is not liable for. injury to one of them resulting from a collision caused by the negligence of the other.

In W. H. Gier v. Los Angeles Consol. Elec. Ry. Co., California Supreme Court, July 3, 1895 (108 Cal. 129), a conductor on an electric street railway was injured by being caught and crushed between two cars. The accident was due to the negligent act of the motorman, plaintiff's coemploye. Held, that there was not sufficient evidence of defendant's negligence in employing the motorman to justify a verdict for plaintiff.

In Britton v. West End St. Ry. Co., Massachusetts Supreme Judicial Court, Feb. 25, 1897 (46 N. E. Rep. 111), held, that a paint shop superintendent, acting as a motorman, was to be regarded as a motorman and not as a superintendent, in applying the employer's liability act (St. 1887, ch. 270), to an action for injury to an employe who was assisting by guiding the trolley.

For said act, see note to Willey v. Boston Elec. Lt. Co., ante, p. 367.

LOWELL M. REDFIELD AND

REDFIELD AND OTHERS, Respondents, v. OAKLAND CONSOLIDATED STREET RAILWAY COMPANY, Appellant.

California Supreme Court, Dec. 6, 1895.

(110 Cal. 277.)

ELECTRIC STREET RAILWAY-INJURY TO PASSENGER.

The death of a passenger upon a trolley car was caused by the car running away and jumping the track.

The following circumstances appeared: The car was in charge of the motorman alone. At a switch he had to go to the rear platform to adjust the trolley. In returning he fell, and the car got away. He had not shut off the power when he left the front platform.

Held, that since in passing the switch the attention of one man was requisite at each end of the car, there was conclusive evidence of negligence