109 Minn. 285 | Minn. | 1909
Action to recover for personal injuries alleged to.have been occasioned by the negligence of defendant, in which a verdict was directed for defendant at the conclusion of the trial, and plaintiff appealed from an order denying a new trial.
The facts are .short: Plaintiff, a servant in the .employ of defendant, was engaged in unloading iron rails from flat cars, and by reason
The theory of the trial court in directing a verdict for defendant' was that the accident was not the result of a railroad hazard, and that the fellow servant statute did not apply. We are of opinion that the case is controlled by Tay v. Willmar & Sioux Falls Ry. Co., 100 Minn. 131, 110 N. W. 433, and Christiansen v. Chicago, M. & St. P. Ry. Co., 107 Minn. 341, 120 N. W. 300, particularly the latter, the decision of which was handed down after the trial of this cause in the court below.
Under the doctrine of those cases, following previous decisions to the same effect, the element of haste with which the work was being done, if an essential element in causing the accident, brought the case within the purpose of the statute, and the questions presented by the evidence should have been submitted to the jury. It appears from the record that the foreman in charge of this work directed plaintiff and his coservants to proceed with this work and “hurry up,” for a train was waiting to take the cars out; and both plaintiff and his brother, testified that they were, when the accident happened, performing the work hastily in compliance with directions. In respect to the order to
Under the rule of the cases referred to, the order for expeditious work by the foreman in charge, and the fact that it is done in unusual haste, create a hazard incident to the operation of railroads, and not the necessity therefor in fact. There was in fact no necessity for haste in either the Tay or Christiansen ease, yet the foreman hurried the men on the theory of necessity, and the statute was held to apply. The cases cannot be distinguished from that at bar. See also Hanson v. Northern Pacific Ry. Co., 108 Minn. 94, 121 N. W. 607.
It is also urged that the element of haste did not enter into the cause of plaintiff’s injury. While the brother testified that he threw his end of the rail because it was “too heavy” and he could not longer hold to it, he also testified that they hurried with the work in compliance with the orders given them. It was for the jury to say whether the work was being done with unusual haste, and, if so, whether that fact was an essential element in bringing on the accident.
Order reversed.