44 F. 855 | U.S. Circuit Court for the District of Minnesota | 1891
(charging ¡jury.') This has been a very long and tedious case, hut it is interesting from the fact that many important legal questions have arisen, aside from the general interest taken in the testimony with reference to the facts. You have given it such patient attention that it does not seem to me necessary to go very far into the details of the testimony. The counsel have very thoroughly and exhaustively presented the several theories upon which a verdict is asked at your hands. Now, what is the case, gentlemen? The plaintiff, a laborer, brings this action to recover damages against the defendants for injuries which it is alleged ho sustained by reason of the negligence of the defendants in the course of his employment; that is to say, he claims that the injuries he sustained were the natural consequence of the negligence of the defendants; that their negligence was the proximate cause of his injury. It appears that the defendants were contractors, — railroad contractors, principally, — and in the spring of 1888 they had a contract to grade somewhere about 10 or 12 miles of the St. Paul & Duluth Railroad, straightening {¿lie track; and in doing this it was necessary to do considerable grading outside of the old track. Upon this work were several gangs of men under foremen,- — at least two; one under the charge of Ma-honey, (not a very large gang,) the other, near Gladstone, under the charge of Murdock, in which gang the plaintiff worked. The work to be
The issues as presented by the pleadings, affirming and denying the facts, as I have stated to you, are to be determined upon the evidence which has been introduced tending to support the several claims, and the law as I deem it proper to g-ive you. You will thus .see, gentlemen, that negligence is the gist of this action, and it may not be improper for me at this time to indicate to you what is negligence, — what is legal negligence. Negligence is defined to be the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the particular situation, or doing what such a person, under the existing circumstances, would not have done. That is the definition which commends itself to most courts as being concise and satisfactory. Now, this negligence being alleged, the burden of proof is upon the plaintiff, by the preponderance of the evidence, to satisfy you that there was negligence on the part of the defendants, or any one who represented them. This negligence cannot be presumed; it must be affirmatively proven, and it is to be determined by you upon the preponderance of all the evidence. It is not sufficient that the plaintiff proves thathe has sustained damage by reason of some omission of the .defendants; he must also prove that the defendants in such omission violated a legal duty or obligation which they owéd the plaintiff by reason of the relation established between them of employer and employe. The defendants are not the insurers of the safety of the plaintiff. ‘ They do not guaranty abso-
This raises a question which it is necessary for mo to instruct you upon, and that is, the duties of the employer (in this case the employers) and the duties of the plaintiff. The law imposes upon the defendants the duty to use ordinary care to select and retain competent servants or co-employes with the plaintiff, and not to subject him to the negligence of incompetent follow-workmen; and also to exorcise ordinary care to furnish a reasonably safe place for plaintiff to do his work, and a reasonably safe structure upon which plaintiff was required to go to do his work, such as is reasonably calculated to insure safety when doing his work; also to use ordinary care to discover any defect, if such exist, in the structure upon which the plaintiff' was required to go in performing his work; to use ordinary diligence to see that the place where the plaintiff's work called him was in such condition as, from the nature of the work and of plaintiff’s employment, he had a right to expect it would be kept; for the plaintiff had a right to assume that all reasonable attention would be given by the defendants to his safety, so that he would not be carelessly and needlessly exposed to risks which might be avoided by the exercise of ordinary care and caution. I say “ordinary care,” and it is necessary for me to define what is meant by ordinary care. Ordinary care is defined to bo that amount of care which an ordinarily prudent person would exercise under the same circumstances; that is, such care as, taking into consideration ail the exigencies of the particular service, ought reasonably to be observed; and the claim here, you •" i 11 recollect, gentlemen, is that this structure which has been exhibited i>i you in the models was insecure and unsafe, the bents and stringers
On the. other hand, if you should believe from the evidence that Mur-dock ivas simply a foreman of a gang in which the plaintiff was employed, both he and plaintiff, as occasion required, working side by side, the former merely leading the work, and giving immediate direction to it and to the men, sometimes in the presence of Mr. Woods, as superintendent, then Murdock and plaintiff were fellow-employes in a common employment, and defendants are not liable or responsible for Mur-dock’s negligence. And if ypu believe that he was simply a foreman, as I have described to you, then the defendants would be entitled to a verdict in this case, unless the plaintiff has proved that the defendants were negligent in the employment of an incompetent servant, who built the structure which it is claimed was unsafe, and that his negligence was the proximate cause of the injury, and unless there was contributory negligence on the part of fhe plaintiff himself, to which I shall briefly call your attention hereafter. You will recollect that one claim here is that the defendants failed in their duty to employ a competent person; that is, that Johnson was an incompetent employe for the work to which he was assigned. It was the duty of the defendants, as I briefly stated to you, which they personally owed to the plaintiff, to use ordinary care to select fellow-remployes of sufficient care and skill to make it probable that he would not be subjected to injury from their failure to possess these qualities; and, if the defendants'themselves, or any representative who was authorized to employ the men, failed to perform this duty, they would be liable to the plaintiff for any injuries sustained in consequence of such negligence or incompetency on the part of fellow-workmen thus negligently employed as might be reasonably anticipated as not unlikely to happen from such incompetency, provided they knew of it, or could, by the exercise of ordinary care and caution on their part, have ascertained it. You have heard the testimony, and I shall not repeat it, in regard to the competency and skill of fhe workman Johnson, who, all the testimony tends to show, was designated to frame the bents, and who, it is claimed on the part of plaintiff, the testimony further .tends to show was designated as the person to erect them, with the assistance of other employes that he could call upon, and to place the stringers in position upon them, so that these Petler railroad tracks could be laid out for the purpose of the work. Now it is for you to determine from all the evidence, the burden of proof being upon the plaintiff, the alleged incompetency of Johnson, by the preponderance of evidence, and also whether he was the person designated forthat particular work of putting that structure in condition, so that it could be operated as a temporary trestle, upon which the dirt as excavated could be hauled out and filled in. Of course, if he was an incompetent per
,\ow if you should find all these issues in favor of plaintiff, or if you should find that Murdock was the vice-principal of the defendants, and that his negligence was the proximate cause of this injury, then the plaintiff' would be entitled to a verdict; or if you should find that, on the other hand, Murdock was a mere foreman, and not a vice-principal, but that the defendants were negligent in employing Johnson, an incompetent person, and that his injuries were caused by such negligence, then the plaintiff' would also be entitled to a verdict, unless he himself was guilty of negligence which contributed to cause.his injury. If Lind-vail went out upon that structure before the time of this accident, as it is claimed, several times, and if he worked upon the dump in view of it, and knew what was going on there, it was his duty to exercise care and caution on his part to avoid any danger, and it was his duty to see that he was not exposing himself unnecessarily to danger in doing this work. It is true that he had a right to roly upon the superior information of the defendants, or the person who represented them, or Johnson, if you believe that he was designated to put up this structure; but if you believe that, by the exercise of reasonable care and caution on his part, he might have discovered that this structure was unsafe, if you should believe that it was unsafe, and nevertheless went out upon the structure, then he contributed to his own injury, and he cannot recover, though you should find that the defendants themselves were negligent.
Yow, gentlemen, I think I have presented this case to you pretty thoroughly, so far as the claim made and the theories advanced by the plaintiff and the defendants. If you should come to the conclusion that the evidence proves no negligence on the part of the defendants, then they are entitled to a verdict. If, on the other hand, you believe 1hal the preponderance of evidence proves negligence on the part of the defendants, then the plaintiff would he entitled to a verdict, unless guilty of contributory negligence, and the question then
The jury returned a verdict for plaintiff for $3,800.