108 Minn. 449 | Minn. | 1909
Plaintiff and respondent, an engineer in the employ of defendant and appellant railroad company, when half way between two stopping points found that the keys and nuts for the bolts which fastened the left eccentric strap to the eccentric were gone and that the two
This argument by defendant the learned trial judge recognized as the only serious question in the case. In his memorandum he said: “Whether or not an engineer under such circumstances should abandon his journey and report the condition of matters to headquarters for instructions, or should make such temporary repairs as were possible and proceed for the short remainder of his run, was for the engineer in the exercise of his best judgment to determine; and that he does not necessarily assume the risks of the journey because he erred in judgment. It is not every defect in his engine discovered by the engineer that would justify him in stalling his train and waiting for repairs from distant headquarters, and whether any particular case required such action must necessarily be left to the good judgment of the engineer, both on general principles governing the duty of an employee to his master and the special rule of the defendant company given in evidence at the trial. Whether the engineer in this case was required to do one thing or the other was, I think, for the jury to say.”
His conclusion was, we are satisfied, correct. Mr. Labatt has thus summarized the authorities: “The case of a railway servant stands upon a special footing, as he is deemed to owe a duty to the public as well as to his employers, and the effect of the decision, as a whole, is that he is justified in taking, much greater risks than employees in other occupations, without, necessarily forfeiting his right of action. Under ordinary circumstances, such a servant seems to be, at all events, entitled to remain at work until he obtains an opportunity of notifying the proper agent of the master as to the existence of danger. It is only in very extreme circumstances that he will not be warranted in remaining on a train until it reaches the next station. But the exigencies of railway traffic will not excuse the servant for running the risk of almost certain injury.” [Labatt, Mast. & S. p. 740, § 302a.]
It would merely encumber the reports to here discuss or to amplify the authorities there cited. That in the case at bar the engineer’s course was a reasonably prudent one the jury might have concluded from many facts generally, and from the particular fact that the en
The authorities to which defendant calls our attention in this ease do not at all control. It is to be borne in mind that at this point defendant is arguing and we are deciding the question of assumption of risk, and not the question of defendant’s negligence.
In Scott v. Eastern Ry. Co. of Minn., 90 Minn. 135, 95 N. W. 892, a freight conductor was held guilty of contributory negligence in using a step on a car, which step was in bad order. The defect existed when plaintiff was directed to take the car out. That case is as foreign to the immediate issue as is Nordquist v. Great Northern Ry. Co., 89 Minn. 485, 95 N. W. 322, in which a conductor of a freight train was held guilty of contributory negligence as a matter of law in not complying with the special rule as to conduct of conductors at a mountain tunnel, requiring them to inform the engineers how many cars of air were working. Plaintiff had no personal knowledge that the air was working on fifteen cars back of the engine. “Plaintiff did not inform the engineer how many cars the air was working on,” as the rule imperatively required; “for he had not informed himself in the premises.” The train proceeded, became unmanageable, ran at a dangerous raté óf speed through the tunnel to a point below where it left the rails at a curve, was thrown down the mountain side, and plaintiff injured. The other decisions to which we are specially referred in this connection set forth admitted, familiar, but irrelevant, principles.
Nor is the case controlled by defendant’s authority to the effect that a servant who is employed to repair machinery, who as a part of his diity handles defective machinery, assumes all risks arising from such defects. That in Kelley v. Chicago, St. P. M. & O. Ry. Co., 35 Minn. 490, 29 N. W. 173, a yard brakeman engaged in handling disabled cars assumed the risk of handling such cars is in no wise inconsistent with the conclusion here reached. Nor does defendant strengthen its position in this case by citing Broderick v. St. Paul City Ry. Co., 74 Minn. 163, 77 N. W. 28, in which a servant, employed to replace rotten wooden poles with iron poles, placed a ladder against a wooden pole and was injured by jumping off when the pole broke at the ground, or Saxton v. Northwestern Tel. Exch. Co., 81 Minn. 314,
Affirmed.