131 Minn. 392 | Minn. | 1915
A former appeal in this case from an order denying defendant’s alternative motion for judgment or a new trial, resulted in a reversal of the order refusing a new trial. The decision was placed upon the ground that there was no evidence tending to prove the existence of a custom to give warning of the danger, which was the sole ground of negligence submitted to the jury as a basis for recovery. We said, however, that it did not conclusively appear that plaintiff had no cause of action, and that the circumstances did not require that judgment be directed notwithstanding the verdict. Marshall v. Chicago, R. I. & Pac. Ry. Co. 127 Minn. 244, 149 N. W. 296.
On the new trial the charges of negligence relied on by plaintiff, and submitted to the jury by the trial court, were: (1) The failure of defendant to instruct or warn plaintiff of the danger; (2) employing an insufficient number of men in doing the work. The verdict was in favor of plaintiff for $2,000. The trial court denied defendant’s alternative motion, and it appealed from this order.
The first contention of defendant on this appeal, as it was on the former appeal, is that judgment notwithstanding the verdict should have been ordered, because it conclusively appeared that there was no actionable negligence on the part of defendant, and that plaintiff assumed the risk. Except that it appeared on this trial that the case was within the Federal Employer’s Liability Act, there is no material difference in the evidence on the two trials. In the opinion on the former appeal the facts are stated as follows:
“At the time of the accident, a bridge crew of which plaintiff was a member, were engaged in removing from a trestle bridge a bent or row of piling which had become decayed to such an extent that it was to be replaced by new material. In constructing the bridge a heavy timber had been placed across the top of the bent or row of piling as a cap, and had been fastened to the piling by drift bolts driven through the cap and into the top of each pile near its center. In removing the piles, the crew cut them off eight or ten feet below the cap timber, pushed or pulled the lower end of the upper piece free from the lower piece which was embedded in the ground, and then worked the upper piece loose from the drift bolt which held it to the cap timber. At all times*395 prior to the accident, the upper piece, after it had been pulled free from the lower piece, had been held suspended by the drift bolt, which fastened it to the cap timber, until the men by twisting it and moving it back and forth worked it loose from such bolt. At the time of the accident plaintiff, unassisted, pulled the upper piece of one of the piles free from the lower piece, and it dropped down upon him dislocating his ankle. Subsequent examination disclosed that the wood around the drift bolt was rotten and the top of the pile cracked or split.”
Additional facts material on the present appeal to the questions of negligence and assumption of risk, are these:
The piles were sawed off close to the ground, and, before attempting to work a pile loose from the drift bolt, it was trimmed at the base with the axe to give it more play, it was then lifted from the piece that remained in the ground, and twisted and moved back and forth until it worked loose from the bolt and fell to the ground. Plaintiff'had been a member of this bridge crew for some six months before May 27, 1913, the day of the accident, and was an experienced man and knew that the piling was being removed because it had become rotten and was considered unsafe as a support for the bridge. His experience in taking out defective piling, however, dated from the time the frost went out in the spring of that year. His testimony was that the gang foreman told him to do the work of loosening the piles after they had been sawed off, and to do it alone; that the foreman said nothing about the drift bolts holding or about any particular defects in this pile or the others; that he, plaintiff, had loosened one pile from its drift bolt before he attempted the one which caused the accident; that he did not look up to the top of the pile, though it was but two or three feet above his head, and though the cracks in it could be plainly seen had he looked. The foreman had made an examination of the piling, but had not notified the men of any particular defects or dangers. According to plaintiff’s testimony, the pile came loose from the drift bolt immediately on plaintiff’s lifting it from the stump in the ground, and not, as he expected, only after effort on his part to work it loose.
The claim that the foreman was negligent in not instructing or warning plaintiff that this pile was rotten at the top cannot be sustained, unless it be held that there was a legal duty to give such in-
As to the other ground of liability upon which the case went to the jury — the employment of an insufficient number of men — it is doubtful whether having two or more men to assist in working the pile loose from the drift bolt would have obviated the danger, but it seems fairly clear that this was not the proximate cause of the accident. When we remember that the very object of the work which plaintiff was doing was to procure the pile to fall on the ground, it is difficult to see causal connection between the accident and the fact that plaintiff did the work alone. The complaint alleged and plaintiff testified that it was perfectly safe for one man to do the work of twisting the pile from the drift bolt and letting it drop, so long as the top of the pile was not rotten, and it is clear enough that it is safe even under such conditions if the man who has hold of the pile knows that it may drop at any time.
A further reason why the failure to employ more men is not a ground of liability is that plaintiff assumed any risks arising from the insufficient number of men. He knew that the pile would fall and that the precise moment when it would fall was uncertain. If one man could not safely handle the falling pile, it was a fact which plaintiff knew, and it must be held that he assumed any risks that resulted from an insufficient number of men. There was no assurance of safety by the foreman, and nothing said that was likely to mislead plaintiff or to misrepresent the situation. Manore v. Kilgore-Peteler Co. 107 Minn. 347, 120 N. W. 340; Stenvog v. Minnesota Tr. Ry. Co. 108 Minn. 199, 121 N. W. 903, 25 L.R.A. (N.S.) 362, 17 Ann. Cas. 240.
In holding that it conclusively appears that plaintiff assumed the
Plaintiff makes the claim that the holding on the former appeal that it did not conclusively appear that plaintiff had no cause of action, and that the circumstances did not require that judgment be directed notwithstanding the verdict, is the law of the case. It is the settled rule that, on a second appeal in the same case all questions, both of law and fact, which were or might have been determined on the first appeal are rm judicata. 1 Dunnell, Minn. Dig. § 398, and cases cited. But this rule hardly applies to all cases where the court has granted a new trial, but has declined to order judgment notwithstanding. Under a familiar doctrine of this court, it .will not grant judgment absolute where it appears probable that plaintiff may have a meritorious cause of action, although on the record before the court no case has been made. We think the decision on the former appeal was upon this ground. It did not appear conclusively that plaintiff might not, on another trial, make a case for the jury; it was therefore not a case that required that judgment be directed notwithstanding the verdict. There has been another trial, no better case has been made, and it now appears that no better case can be made. The circumstances now require, in our opinion, a holding that it conclusively appears that plaintiff has no cause of action, and that defendant is entitled to judgment ending the litigation.
Order reversed, and judgment for defendant notwithstanding the verdict ordered.