187 N.W. 817 | N.D. | 1922
Lead Opinion
On the 26th day of July, 1919, Grant Clark, minor son of P. M. Clark, the administrator, who is plaintiff in this action, was killed while attempting to board or ride upon a moving freight train in the railroad yards of the defendant in the city of Ken-mare in this state. At the time of his death, said Grant Clark was about 8j£ years old. For some days prior to July 26, 1919, the employees of the defendant had been engaged in constructing a sewer from the lake front on which the railroad yards were located in a northerly direction, and under the several tracks of the Soo Railway Company'in said railroad yard. In digging the trench in which to lay the sewer, the dirt wras thrown up on each side of the ditch. At the point where the accident occurred there were two piles of dirt extending from the railroad tracks on each side of the trench. It is very difficult to ascertain the exact dimensions of the two piles of dirt, as all the witnesses merely gave their estimates, and the same witnesses frequently varied the estimates given. It appears, however, that the two piles were some 4)^ to 5 feet in height, from 4 to 8 feet in width, and from 7 to 12 or 15 feet iti length, extending as aforesaid from the railroad track on each side of the trench. There were planks laid so as to cover the trench between the two piles of dirt. About half past 3 o’clock in the afternoon of July 26, 1919, two boys, Grant Clark and Howard Tyson, being respectively 8^2 and 9 years of age, passed the place where this work was going
Defendant’s first contention is that the evidence is insufficient to sustain any verdict, in this, that it fails to show any actionable negligence on the part of the defendant. It will be noted that the first ground of negligence is based upon the acts of Koester. In his complaint the plaintiff alleged and upon the trial sought to prove that Koester was the foreman, and that the sewer was being constructed under his supervision and direction. The only evidence tending to establish this alleged fact is the testimony of the plaintiff to the effect that some days after the accident occurred, Koester stated to the plaintiff that he (Koester) was
As already stated, it appears that at the time the accident occurred Koester was the only one of the men engaged in the construction work left at the excavation, and that he was about to leave. Koester, in answer to questions propounded by plaintiff’s counsel, testified that before going away that evening he looked to see if any tools had been left Iving around; and it is contended by plaintiff that this is evidence that he was in charge of the work. The undisputed testimony of Koester, however, is to the effect that the foreman had given orders to all the men to pile the tools up when they quit work in the evening; that he (Koester) was merely looking to see if any one had forgotten to place his tools where they belonged; that he was not in charge of any tools except those who he used personally. A careful consideration of all the evidence bearing on the question leads us to the conclusion that there is no substantial evidence to sustain a finding that Koester was in charge of the construction work, or that he was anything more than an ordinary laborer engaged in the construction of the sewer. In our opinion, all the competent evidence in the case shows that Koester was not the fore-man, or in charge of the Work, but was merely an ordinary laborer
“The declarations of an alleged agent are not admissible against the alleged principal to prove the fact of his agency. Neither are the declarations of an agent admissible against the principal to show the extent of his authority as such agent. The agency must be proved by other evidence before-his acts and statements can be shown against the principal.” 31 Cyc. 1652 — 1654.
See, also, 10 Ency. Ev. 15 — 18: Elliott on Railroads, (2d ed.) § 2x7.
Neither do we believe that the declarations of the station agent were admissible to establish the agency and extent of authority of Koester.
“Declarations of another agent of the same principal are not admissible, but admissions of a general agent as to the extent of an inferior agent’s authority may be received upon the same footing as admissions of the principal.” 10 Ency. Ev. 21.
See, also, Elliott on Railroads (2d ed.) §§ 217 — 2-9.
There is no evidence in this case tending to show that the station agent at Kenmare had any authority, or exercised any function, other than that of an ordinary station agent. Manifestly it cannot be presumed that such station agent exercised any control over construction crews, or that foremen in charge of such crews were under his direction. The declarations of the station agent, made within the scope of his authority, were, of course, admissible; but we find no reason, either in the evidence or in the authorities, for holding the alleged_ statement of the station agent as to the agency of Koester to be one connected with matters within the scope of a station agent’s authority. See Elliott on Railroads (2d ed.) § 303. We are of the opinion, therefore, that it was error for the trial court to deny the motion to strike out the evidence relating to the statements alleged to have been made by Koester and the station agent. We are also of the opinion that there was no substantial evidence tending to establish that Koester was a foreman or in charge of the construction work, and that that qxtestion should not have been submitted to the jury. We cannot say that the verdict would have been the same if these errors had not been committed. Hence the judgment must be set aside and a new trial had. Funk, Adm’r, v. St. Paul City Ry. Co., 61 Minn. 435, 63 N. W. 1099, 29 L. R. A. 208, 52 Am. St. Rep.
The second ground of alleged negligence is predicated upon the placing of the two piles of dirt near the railroad track. Plaintiff invokes § 4700, C. T. 1913, which reads:
“On or after the first day of January, 1915, it shall be unlawful for any such common carrier to erect or maintain on any standard gauge road on its line, or on any standard gauge sidetrack used in connection therewith * * * any coal chute, stock pen, pole, mail crane, standpipe, hog drencher, embankment of earth or natural rock, or any fixed or permanent structure or obstruction upon its line of railroad, or on any side track used in connection therewith, at a distance less than eight feet, measured from the center line of the track which said structure or obstruction adjoins: * * * Provided that station freight house platforms which have a vertical height of not more than four feet, measured from the top of the track rail, may be' erected and maintained at a less distance from the center of the track which they may adjoin than herein specified.”
The defendant contends that this statute has no application for two reasons: (1) That the piles of dirt shown to exist in this case were not embankments of earth within the purview of the statute; and (2) that the statute was enacted solely for the benefit of trainmen, and that hence, in case of violation thereof, a recovery can be had only by a person belonging to the class which the legislature intended to be protected by the statute. After a careful consideration, we have reached the conclusion that neither of the contentions advanced by the defendant can be sustained.
At the time the,accident occurred the construction crew had ceased to labor. The two piles of dirt which are involved in this controversy were left in the condition in which they were with the intention at least that they should so remain during the night. The evidence does not show how long they had been where they were, nor how long they would be likely to remain. We believe that these embankments of earth were within the prohibition, of the statute. -
While it may be true that the statute was intended primarily for the protection of railroad employees, we are by no means satisfied that it was enacted solely for the protection of such employees. The statute
In Union Pac. R. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. ed. 434, the Supreme Court of the United States had occasion to consider the effect of noncompliance with a statute of the state of Colorado requiring the owners of coal mines to fence their slack pits. The statute by its express terms was enacted for the protection of cattle and horses. A boy some 12 years old becoming frightened by the threats of other boys, and attempting to escape from them, fell into the burning slack, and was injured. In that case, as here, it was contended that, inasmuch as the statute was enacted for the protection of horses and cattle, it could not be invoked in a case where personal injuries were sustained. In disposing of that contention the Supreme Court of the United States said:
“The only question that could arise upon this part of the case is whether the court should have instructed the jury — as, in effect, it did— that the failure of the company to put a fence around the slack pit, as required by the statute of Colorado, was negligence, of which the plaintiff could complain in this action for personal injuries sustained by him. Primarily, that statute was intended for the protection of cattle and horses. But it was not, for that reason, wholly inapplicable to the present case upon the issue as to negligence. In Hayes v. Michigan Cent. R. Co., 111 U. S. 228, 240 (28: 410, 412), which was an action by an infant for personal injuries sustained by the alleged negligence of a railroad company in not properly guarding its line within the limits of the city of Chicago, this court, speaking by Mr. Justice Matthews, said: ‘In the analogous case of fences required by the statute, as a protection for animals, an action is given to the owners for the loss caused by the breach of the duty. And although in the case of injury to persons by reason of the same default, the failure to fence is not, as in the case of animals, conclusive of the liability, irrespective of negligence,' yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence. The duty is due, not to the city as a municipal body, but to. the public, considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his in*922 dividual compensation, and to an action for its recovery.’ The nonperformance by the railroad company of the duty imposed by statute, of putting a fence around a slack pit, .was a breach of its duty to the public, and, therefore, evidence of negligence, for which it was liable in this case, if the injuries in question were, in a substantial sense, the result of such violation of duty.” 152 U. S. 282, 283, 38 L. ed. 443.
See, also, Martens v. Public Service Co., 219 Ill. App. 160.
We are of the opinion, therefore, that the plaintiff may predicate an action upon defendant’s breach of the duty prescribed by § 4700, supra. A great deal of the evidence in the case relates to the second ground of negligence. We have carefully considered such evidence, and have reached the conclusion that under it the questions of negligence and proximate cause are questions of fact for the jury.
It is also contended that the deceased was guilty of contributory negligence as a matter of law. In view of the youth of the deceased, we do not believe it can be said that there was contributory negligence as a matter of law. See Elliott on Railroads (2d ed.) § 1261.
It is also suggested that the verdict is excessive. Under the evidence here we are not prepared to say that the verdict is so large that the court should interfere therewith.
Reversed and remanded for a new trial.
Rehearing
Plaintiff has petitioned for a rehearing. In the petition it is argued that, inasmuch as this court ruled that there was sufficient evidence to sustain a verdict as to one of the two grounds of negligence upon which plaintiff’s action is predicated, the court should have affirmed' the judgment. It is doubtless true that where a cause of action for personal injury is based upon several grounds of negligence a recovery may be had i'f any one of the grounds is established, but we do
There was no special finding, however, covering the question of proximate cause. The jury by the general verdict said that the defendant was guilty of negligence, and that such negligence was the proximate cause of the death of Grant Clark, but they did not say that the placing of the embankments of dirt was the proximate cause. If there had been a special finding to that effect a wholly different situation would have been presented. It may be that in arriving at the general verdict the jury, or some of them, considered that the acts of Koester was the proximate cause. It is elementary that in order to render a party liable to another for damages resulting from negligence it must not only be shown that the party sought to be charged was negligent, and that the party seeking recovery was damaged, but it must also be shown that the damages sustained proximately resulted from the negligence of the party so sought to be charged.
In the.petition for rehearing it is contended that the court should say, as a matter of law, that the placing of the embankments of dirt was the proximate cause of the death of Grant Clark. We are unable to agree with this contention, and adhere to the views expressed in our former opinion that both the question of negligence and proximate cause were, under the evidence here, questions of fact for the jury.
A rehearing is denied.
Concurrence Opinion
I concur in reversal. In my opinion, there is no liability.