297 N.W. 718 | Minn. | 1941
A short summary of the undisputed facts will suffice for disposition of the case. The workman, Arne Pederson, a window washer, died on April 5, 1937, as a consequence of injuries suffered while in the employ of Clarence T. Holberg, who did business as the Acme Window Cleaning Company. Holberg was insured by Hartford. While washing windows on the fourth floor of a building owned by defendant in downtown Minneapolis, Pederson fell to his death because a safety bolt to which his belt was fastened was improperly secured in the wall contrary to ordinance. The trial court found that defendant was negligent. But it further found that Pederson's contributory negligence was a bar to the action by plaintiff as subrogee.
The argument that the workman's contributory negligence is not a bar to the action proceeds upon the premise that the "same or related purposes" provision of 1 Mason Minn. St. 1927, § 4291(1), confers upon those third parties who are subject to the act the status of employers with consequent loss of this defense. It is said that the legislative intention was to shift to the third party the liability otherwise resting with the employer. There would be much force to the plaintiff's argument if the compensation act had in fact conferred upon such third party the status of an employer. But it has not. The similarity of his relationship to the real employer arises solely from the community of interest between them. See Rasmussen v. Geo. Benz Sons,
If the third party must have been negligent before he can be held accountable, then the action authorized by § 4291(1) so partakes of the nature of a common-law action for damages that, in absence of specific legislative abolition of the defense of contributory negligence, we are constrained to hold that it is a bar to this action. Thornton Bros. Co. v. Northern States Power Co.
Judgment affirmed.