106 Minn. 134 | Minn. | 1908
Lead Opinion
At the close of appellant’s case the trial court granted respondent’s motion to dismiss the action upon the ground that the evidence failed to establish a cause of action against the railway company, that it appeared from the evidence that appellant was guilty of contributory negligence and had assumed the risks and dangers, and upon the further ground that it appeared from the evidence that the People’s Ice Company had paid him $40, which he accepted in full satisfaction of any and all demands against that company.
1. Where two or more persons are liable for an injury sustained by a third party, a settlement by the plaintiff with one of the joint tortfeasors inures to the benefit of all who are legally responsible for such injury, and when a plaintiff makes claim in good faith against another for injuries, and accepts compensation and gives satisfaction therefor, all persons against whom suit might be brought for such injuries are released, whether the party with whom the compromise was made could have been legally held in an action for damages or not. These propositions were recognized and applied in the case of Hartigan v. Dickson, 81 Minn. 284, 83 N. W. 1091.
In the present case the ice company and the railway company were named in the complaint as joint tort-feasors; but no cause of action was stated against the ice company. The only cause of action pleaded involved the question of the railway company’s liability in furnishing a defective car to the ice company, in which appellant, an employee of
But, in determining whether or -not such was the intention of the parties, all the facts and circumstances must be considered, including the pleadings and the evidence. It is claimed on the part of appellant that there never was any intention on his part to state a cause of action against the ice company, or to claim any damages from it on account of his injuries; that the ice company was joined as a party merely under some fancied idea of retaining jurisdiction, in the district court. However that may be, it does not appear that there was any reason why appellant was not entitled to dismiss the action as to the ice company. If- the money was paid by the ice company for some other reason, without regard to securing a.satisfaction of appellant’s claim, then the trial court was in error in dismissing the action. The evidence was not conclusive that the money was paid and received in satisfaction of appellant’s claim for damages, and that question should have been submitted for the consideration of the jury.
2. Respondent railway company concedes that the car was defective, not fit for service, and that it had a “bad order” card on it, notwith
It is fairly inferable, from the conditions as developed by the evidence, that if the ice tongs had not slipped appellant might, in the exercise of reasonable care, have succeeded in dislodging and removing the block of ice without any accident. It was not negligence per se for appellant to attempt to remove the ice, knowing the hole was there, and the fact that he voluntarily took some risk is not conclusive evidence that he was not, under the circumstances, using due care. It does not conclusively appear that the risk was so imminent that a person of ordinary prudence would refuse to carry on the work. The question before the court was whether appellant was in the exercise of ordinary care in doing his work under the circumstances. This, we think, under the evidence, was a question of fact, and should have been submitted to the jury.
Reversed.
Dissenting Opinion
(dissenting).
I dissent. The peril was obvious and understood. The maxim “Volenti non fit injuria” applies. Plaintiff assumed the risk.