169 N.W. 84 | N.D. | 1918
In this case the defendant railway company appeals from a personal injury judgment against it for $2,200. At and prior to the time of the injury the railway company was engaged in the business of running a machine shop at Devils Lake. Defendant, a young man nearing eighteen yeárs, entered the shop as an apprentice to learn the business of a machinist. He worked in the copper-smith department over a year, then he operated a machine, facing nuts and bolts. Then he operated a planer, then he worked on a rod bench, taking out brasses and filing them down and fitting them. Then he began operating a large wheel lathe, and in cleaning it he was injured, after an apprenticeship of two months on the lathe.
The injury was the direct result of a dare-devil stunt. An attempt to clean the machine when in operation. The complaint avers that on May 27, 1916, the plaintiff was in the employ of the railway company as an apprentice machinist, working .under the supervision of defendants Iialliday and Ridgedale, and that in obedience to their orders the plaintiff attempted to clean the machine while it was in operation, and in so doing his feet slipped from the frame, and in attempting to save himself from falling he threw his right hand forward, and it was caught in the running gears, and the fingers and thumb of his right
Under the statute an employer must indemnify his employee for looses occasioned by the former’s want of care. § 6107. An employer is not bound to indemnify his employee for losses suffered by the latter in. consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of any other person employed by the same employer in the same general business, unless he neglected to use ordinary care in the selection of the culpable employee. There is no charge that the railway company was negligent in the selection and employment of the other defendants or that they were not entirely competent. However, it is charged that they expressly directed the plaintiff to do the cleaning while the machine was in operation, and looked on while he did it. If that is true> the verdict should be against them and probably against the company, but the jury found against the company and failed to make any finding either for or against the other defendants. They gave a half-way verdict, which should not have been accepted as a basis of a judgment against the company or in favor of the defendants. Since the alleged negligence of the company was based on the negligence of the other defendants, it could not be liable unless they were liable. A verdict for them would have been a verdict for the company. Hence the case presents a mistrial. The verdict should not have been accepted.
The plaintiffs cite this statute. “In all actions hereinafter brought against any common carriers to recover for damages for personal injuries to an employee, . . . the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, where his contributory negligence was slight and that of the employer was gross in comparison, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. All questions of negligence and contributory negligence shall be for the jury.” Laws 1007, chap. 203, § 2.
However, in running a machine shop, a farm, or a. coal mine, the liability of a common carrier is precisely the same as that of any other
Reversed and remanded.
