197 N.W. 140 | N.D. | 1924
Lead Opinion
This is an appeal from an order of the district court of Burleigh county, overruling a demurrer to the complaint, interposed upon the ground that the complaint does not state facts sufficient to constitute a cause of action.
The plaintiff alleges that the defendant is a corporation operating a system of railroads thru the state of North Dakota and elsewhere;’that in October, 1921, the defendant “contracted with and engaged the plaintiff to overhaul and repair the gasolene engine of a certain gasolene propelled vehicle consisting of a small gasolene engine mounted on
Plaintiff was not employed to repair the tricycle, but to overhaul the engine. The work of overhauling the engine was apparently completed. The engine was separable from the speeder. If the injury resulted proximately and solely from the negligent manner in which the repair work was done, or from an act which was a necessary incident of the work, the defendant would not be liable. Note in 65 L.R.A. 641. There is nothing in the complaint from which we are justified in drawing this inference, as a matter of law. It is true, the complaint says that plaintiff “determined and found that it would be advisable to try out and test the said engine by operating the said speeder upon the railway tracks,” but it is not alleged that it was essential to a proper repair job that the tricycle be in fact operated on the tracks. We think
It should also he noted that the tricycle was an instrumentality in-use only upon railroad tracks; it was not in common use with the qualities and characteristics of which, dangerous or otherwise, the general public would be presumed to be more or less familiar. It cannot be classed with automobiles or other vehicles in general use. Whatever dangerous characteristics this appliance may have possessed would necessarily he known only to the defendant or persons who had had actual contact or experience with it.
As we view this case, it is not material whether the plaintiff be considered an independent contractor, bailee, or otherwise. The decision of the trial court must he sustained, if at all, because the complaint alleges that the instrumentality was dangerous, that its dangerous characteristics were known to the appellant, or, in the exercise of ordinary care, would have been known to it, that they were not known to tho respondent and that the appellant, when it authorized the respondent to use the machine upon its tracks, failed to notify the respondent of such dangerous characteristics.
Tn this, as in other cases of negligence, there lies at the threshold of the investigation the inquiry: What, duty which appellant owed the respondent did it fail to discharge ? The cause of action alleged in the complaint is founded upon negligence. The plaintiff must show that the defendant owed him a legal duty which it failed to perform and that, as the proximate result of such failure, he suffered the injury described in the complaint. There is no allegation in the complaint that there was any specific defect in the machine; it is not claimed that any part of it was worn, broken, or in any respect defective; the
What legal duty, if any, did the defendant owe the plaintiff, under the circumstances ? Plaintiff says that the instrumentality turned over to him for use upon defendant’s tracks was dangerous, by reason of its construction in this, that it was liable, to leave the track without warning, throwing the operator off, and thereby injuring him. He claims, in substance, that while the tricycle was in no specific particular defective, so as to distinguish it from others of its kind, it and the entire class to which it belonged, was dangerous by reason of its construction, when operated on railroad tracks and that plaintiff did not, but defendant did, know this fact. Can we say, as a matter of law, that the defendant, in failing to give plaintiff warning of this fact, used that, degree of care which an ordinarily prudent person, in the same situation, would have used? We do not think so. Would an ordinary person, a reasonable man, foresee probable harm to plaintiff from failure to notify him of the dangerous characteristics of the speeder? We think that, upon the face of the complaint, this question must be answered in the affirmative. It is alleged that the speeder possessed the dangerous characteristic of jumping the track without warning; if that bo a fact, as we must assume it to be, it was the duty of the defendant to apprise plaintiff thereof when license was given him to operate it upon the railroad tracks. We think a prudent person, in the position of the defendant, possessing knowledge of the dangerous characteristic of this instrumentality, would have foreseen the probability of harm unless plaintiff were advised of the danger.
It is alleged, as an ultimate fact, that the railroad tricycle was an instrumentality dangerous within itself; that the danger claimed did not arise from its misuse. It was being operated, the complaint says, “in the usual manner” and without negligence; that, notwithstanding, and because of inherently dangerous qualities and characteristics, the-
Applying the elementary tests of negligence, we believe the complaint states a cause of action. .
Order affirmed, with leave to answer within thirty days from filing of remittitur.
Dissenting Opinion
(dissenting). The complaint in this case alleges that the plaintiff was engaged by the defendant to over-haul and repair
It is alleged: “That aforesaid thrce-wheelecl gasoline speeder was a dangerous and treacherous machine to operate and control when running upon a railroad track in that said machine, on account of the nature of its construction, did not hold to the track, but, in fact, was extremely dangerous and treacherous in that its wheels would, without warning, jump off from the track rails, all of which said facts were-known to the defendants and wholly unknown to this plaintiff, and of which facts the defendant negligently, carelessly and wantonly failed and neglected to impart to or give notice of to the plaintiff when authority to operate said speeder upon the tracks of the defendant was given by it to the plaintiff, or at any other time.”
It is further alleged that the speeder, while being operated by the plaintiff in the usual manner, “did jump off the rails;” that the plaintiff sustained injuries as a result thereof; and that all such “injuries and bruises were caused, without fault on the part of the plaintiff or his employee, by the failure and negligence of the defendant, as aforesaid, in negligently and carelessly failing to impart to or give notice, to the plaintiff, of the dangerous and treacherous nature of said speeder when operated upon a railroad track, as aforesaid.”
There is no allegation in the complaint that the speeder was in any manner different from others of its class. On the contrary, from the facts alleged in the complaint, it must be assumed that it had all the virtues and all the faults of speeders in general. Or, as it is said in the majority opinion: “There is no allegation in the complaint that
The plaintiff had undertaken to repair the engine and he asked permission to operate the speeder on the tracks for the purpose of “trying out and testing” the engine. There is no contention that -the plaintiff at the time he asked such permission in any manner intimated that he was not familiar with the operation of speeders or their general characteristics while being operated on a railroad track.
In my opinion the averments in the complaint do not show that the defendant breached any legal duty which it owed to the plaintiff. In other words, I am of the opinion that the complaint does not state facts sufficient to constitute a cause of action.