124 Minn. 1 | Minn. | 1913
Appeal by defendant from an order denying its alternative motion after verdict for the plaintiff in an action .to recover damages for personal injuries.
“There always may be latent dangers attendant upon the usual conduct of a business of whose existence it is the duty of the master to warn the servant so that the latter can decide for himself, after being so warned, whether or not he will assume them by remaining in the employment.” Ruck v. Milwaukee Brewery Co. 144 Wis. 404, 129 N. W. 414. See also Boin v. Spreckles Sugar Co. 155 Cal. 612, 102 Pac. 937.
So in the present case, plaintiff should have been warned before being sent to this place of danger, in order that he might have elected whether to remain in or quit the employment. No such alternative was given him at any time. Had he received such warning its effect would have been material only upon assumption of risk or contributory negligence.
Plaintiff testified:
“Q. Had you known that the defendant company, or.any of its officers, warned or notified you that they were using powder or dynamite down in that vicinity what would you have done ?
“A. I would have went to those men and told them to notify me in case blasting was going to be done.
“Q. Had you known there was blasting going to be done there, would you have remained upon that semaphore pole ?
“A. No, sir; I would not.”
Upon this testimony, and mainly upon statements of principles excerpted from 2 Dunnell, Minn. Dig. § 7000, defendant insists that “plaintiff’s injury was a direct consequence — not of his ignorance of the blasting operations in general, not of defendant’s failure to warn him concerning the same — but solely of the failure on the part of Baxter’s men in charge of the blasting to notify him that the particular charge by which he was injured was about to be fired. And therefore defendant, though failing to warn plaintiff of the blasting, is not the cause of, nor answerable for, his injury.” Thus,
A holding in accordance with defendant’s contention would emasculate the doctrine of duty to warn, and in the present case this would be done upon purely conjectural grounds. Plaintiff says he would have arranged for warning. What else would he have done? What kind of warning would he have demanded? Who can say that the same result would have followed had he actually conferred with the subcontractor, or that in such case he would still have been injured? Indeed, is there anything in the record reasonably tending to show that plaintiff, if he had been fully warned by defendant, would not have even quit the employment or else have refused to go to the semaphore pole in question? It should be remembered that the master’s duty is not merely to advise the servant of existing conditions, but to see to it that he comprehends the risk and understands the danger. 3 Labatt, Master & S. (2d Ed.) § 1147; 1 Street, Foundations of L. L. 166-169. As said in The Magdaline, 91 Fed. 798, 800, quoted with approval in Thomas v. Wisconsin Central Ry. Co. 108 Minn. 485, 489, 122 N. W. 456, 23 L.R.A. (N.S.) 954:
“A master may not place his servant at á work made dangerous by the nature of the work of other servants, or persons performing work under contract, without due effort to furnish adequate protection, and, when injury arises, escape upon the plea that, but for the*7 negligence of a coservant or third person employed on the premises, the injury would not have happened. A servant may expect that his master will not surround him with dangerous agencies, or expose him to their operation, whether they are in charge of the master’s servants or of any independent contractor.”
The case under consideration is analogous to one involving violation of a statutory duty as negligence, of which it has been said:
“Where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent.” Perry v. Tozer, 90 Minn. 431, 438, 97 N. W. 137, 140, 101 Am. St. 416.
No distinction can be drawn between the effect, in this connection; of breaches of common law and statutory duties, and an imputation of causal connection in such cases cannot be destroyed by mere speculation or conjecture. Aside, then, from the question of whether the subcontractor’s negligence is to be deemed an independent, intervening cause, we think it clear that the jury were justified in finding plaintiff’s injury to be a. consequence which followed in natural sequence from defendant’s negligence, which latter, therefore, must be held to be the proximate cause thereof. Christianson v. Chicago, St. Paul, M. & O. Ry. Co. 67 Minn. 94, 97, 69 N. W. 640; Wallin v. Eastern Ry. Co. of Minn. 83 Minn. 149, 157, 86 N. W. 76, 54 L.R.A. 481.
“The new, independent, intervening cause must be one not produced by the wrongful act or omission, but independent of it, and*8 adequate to bring about tbe injurious results. Whether the natural connection of events was maintained or was broken by such new, independent cause, is generally a question for the jury.” See also Illinois Cent. R. Co. v. Siler, 229 Ill. 390, 82 N. E. 362, 15 L.R.A.(N.S.) 819, 11 Ann. Cas. 368; Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256.
How can it be said that failure of the excavation workmen to notify plaintiff interrupted the natural sequence of events beginning with defendant’s neglect of duty or checked the causal momentum of its negligence ? Did the intervening circumstance produce a result which would not otherwise have followed ? Plaintiff would have been injured just the same, if the excavation workmen had been ignorant of his presence. How, then, can their knowledge and futile attempt to warn him constitute a breaking of the causal sequence ? True, he might not have been injured had he received warning of the particular blast in question; but this, at most, would bring the case within the rule relating to mere incidents in the natural sequence from the first wrongful act, or else within the doctrine of concurrent negligence, neither of which would relieve the original wrongdoer. See Baltimore & P. R. Co. v. Reaney, 42 Md. 117, 137. Viewed as an incidental matter, the subcontractor’s negligence was a mere failure to interrupt the natural course of events started by defendant’s putting plaintiff at work on the semaphore pole without warning as to surrounding conditions. Moon v. Northern Pac. R. Co. 46 Minn. 106, 48 N. W. 679, 24 Am. St. 194; Teal v. American Mining Co. 84 Minn. 320, 87 N. W. 837; Board of Co. Commrs. of Ramsey County v. Sullivan, 94 Minn. 201, 206, 102 N. W. 723; Thomas v. Wisconsin Central Ry. Co. 108 Minn. 485, 489, 122 N. W. 456, 23 L.R.A.(N.S.) 954; Neidhardt v. City of Minneapolis, 112 Minn. 149, 127 N. W. 484. Considered otherwise, the negligence of defendant and that of the subcontractor constituted contributing causes of the injury, for which, therefore, plaintiff “may recover damages from the one guilty of the first wrong, notwithstanding the succeeding negligence of the other united in producing” it. See concurring opinion of Mitchell, J., in Martin v. North Star Iron Works, 31 Minn. 407, 410, 18 N. W. 109. See also Johnson v. Northwestern Tel. Exch. Co. 48 Minn. 433, 51
“It is for you to find whether the defendant, knowing what it did about the Soo work being done, the manner in which it was being carried on, and of its dangers to the men on the road, was negligent in failing to give the plaintiff a warning or information as to the blasting before putting him at his particular work.” No objection or exception was taken on the trial; and if defendant desired the jury’s attention called to the distinction between notice and knowledge, request should have been made.
5. The verdict returned was for $11,375, which was reduced by the trial court to $9,000. It is claimed that this was so excessive as to indicate passion or prejudice; and further, that as reduced the verdict is still excessive. The accident caused loss of sight in one eye, fracture of the jaw bone, permanent disfigurement of the face, the teeth remaining out of .alignment and pain being suffered a year after the accident and up to the time of trial, and usual physician’s expenses and loss of time ensued, but no decrease in earning capacity. No arbitrary standard can be fixed for measuring damages for such injuries. Intelligent jurymen might easily differ in arriving at a compensatory sum, and we find nothing to indicate passion or prejudice. Whether- the verdict as reduced should be sustained depends largely upon whether the trial court abused its discretion in the matter. Gibson v. Chicago Great Western R. Co. 117 Minn. 143, 148, 134 N. W. 516, 38 L.R.A.(N.S.) 184, Ann. Cas. 1913C, 1263. We find no ground for interference.
Order affirmed.