28 Minn. 110 | Minn. | 1881
The evidence in this case was such that the question of defendant’s negligence, and of contributory negligence on the part of plaintiff’s intestate, was for the jury to determine; and it was not such that we can say the danger which caused his death was one of those which intestate knew, or which, in the exercise of proper care, he might have known, to be one of those incident to the employment that he was engaged in, and the risks of which he had assumed. In all respects the case was a proper one for a jury. But the charge of the court was likely to mislead the jury into applying a .more severe rule as to the care and prudence required of defendant than is applicable as between master and servant. The failure alleged against defendant was to provide a suitable — that is, a safe — track for the running of a train on which the intestate was employed at the time he was killed. Its unsafe condition was caused by sand, which had been washed on it from a hill by the side of the track in a storm.
The same degree of care is required of the master, in keeping what is required in the business-in good condition, as in originally selecting it. Where the master entrusts the duty of providing the tools, machinery and appliances necessary for performing his business and keeping them in safe condition to others, he is responsible for their neglect to employ that degree of care and prudence. As held by this court in Drymala v. Thompson, 26 Minn. 40, those to whom a railroad company entrusts the duty of placing or keeping its track in safe condition for the running of cars, must, in respect to its other servants employed in running the cars, exercise that degree of care and prudence, and the company is liable to such other servants for injuries caused by their neglect to do so. That is the degree of care and prudence which determines the defendant’s liability in this case-The liability is subject to be affected by another rule, to wit: that-when a servant accepts or continues in an employment which is unsafe by reason of this unsuitableness or inadequacy of the instrumentalities provided for it by the master, and such unsuitableness or inadequacy is known to the servant, or is so apparent and open to observation that he is chargeable with negligence if he do not know it, then he must be assumed to have taken on himself the risk incident to-such unsafe condition. Fleming v. St. Paul & Duluth R. Co., 27 Minn. 111; Hughes v. Winona & St. Peter R. Co., Id. 132; Walsh v. St. Paul & Duluth R. Co., Id. 367.
The court below charged the jury, among other things, that “it is the duty of those who use hazardous agencies and instrumentalities to control them carefully, and to adopt every ordinary known and usually approved .invention to lessen the danger, and to guard against every ordinary probable danger by such means as ordinary prudence
The court did, indeed, charge, in general terms, that the degree of care and prudence required of the defendant in the case was “due and ordinary care,” “reasonable care,” and “ordinary prudence.” But this was not sufficient to cure the errors occurring in the portions of the charge we have quoted; for th.e prevailing tone of the entire charge was on the plane of those portions. So far as the charge, taken as a whole, lays down a rule as to the degree of care and prudence required in the ease, it was, at least, as high a degree of care and prudence as is required between a common carrier of passengers and a passenger, and portions of the charge even go beyond that. Notwithstanding what was said as to “due and ordinary care,” “reasonable care,” and “ordinary prudence,” the jury may have under-, stood, and probably did understand, that it was the absolute duty of the defendant to make all necessary guards against danger caused by ordinary and usually severe storms, and to guard against washouts, land-slides, and obstructions which might endanger the lives of passengers and employes, and to keep its road in suitable and safe repair; and that no amount of care and prudence to effect these ends would
Other errors in the trial are alleged; but, as there must be a new trial, on which they may not occur again, we do not think it necessary to specify them.
Order reversed, and a new trial ordered.