| N.D. | Jul 26, 1923
This is an action for personal injuries, brought under the Federal Employers’ Liability Act. It was tried to a jury, and a verdict returned in favor of the plaintiff for $500. Defendant moved for judgment notwithstanding the verdict, or for a new trial. The motion was denied, and defendant has appealed from the judgment.
The sole question presented on this appeal is the sufficiency of the. ' evidence to sustain the verdict. In other words, it is contended by the defendant that the court erred in denying its motion for a directed verdict and its motion for judgment notwithstanding the verdict.
The complaint alleges:—
“That on May 11th, 1921, this plaintiff was engaged by and for said defendant as a section laborer atTIensal, North Dakota, with the section crew which then and there consisted of a section foreman and another laboring man in charge of the said rails, track, ties and road bed and right of way of said defendant for a space of over five miles in a northwesterly direction from Kensal in Stutsman county, and that tlie said defendant was in duty bound to furnish good and sufficient-tools and equipment with which to carry on and do the work of repair of said rails and track, of ties under said track, and the road bed. That ón May lltli, 1921, this plaintiff was so engaged with the section foreman, and the said defendant furnished therefor two picks and other equipment and tools, that one of said pick’s handles had negligently been permitted to become old and worn and rotted and that while the other of said laborers was using the same in the ordinary manner and way it broke owing to its negligent and defective condition which had, unbeknown to this plaintiff, existed for many weeks, so that when said laborer struck the pick, in the usual manner in an old decayed tie, the handle broke, and thereupon the section foreman in charge of said section crew instructed said other laborer to aid and assist this plaintiff in pulling out old rotten ties .from underneath said
The answer admits that the plaintiff was employed by the defendant as a section laborer on or about the time .the injury was sustained; but alleges that the injury was of a slight and temporary character, and denies that such injury was occasioned by any negligence on the part of the defendant or its employees. It also alleges that whatever injury plaintiff sustained was caused solely by his own negligence; and that the injury, if any, was due to risks and hazards knowingly and voluntarily assumed by the plaintiff.
The plaintiff testified: I am 49 years of age. In the spring of 1921 I -was working for the defendant railway company on the section at Kensal. On the day the accident happened we were taking out old ties and putting in new ones. Mike Davey -was our foreman. His son
On cross-examination plaintiff testified:
Henry Davey and I were fellow-laborers that day, both working under the direction of the same foreman. The accident occurred between 3 and 4 o’clock in the afternoon. We pulled the old ties outwith the pick. That is the way it was done. It was a heavy tie. We both pulled on the same pick. If Davey hadn’t had hold of the handle I don’t believe I would have been hurt. I blame him that way, both of us having hold of that one handle. We were both pulling the tie up to the time I struck the rock. I don’t think I would have pulled the tie against my foot if Davey hadn’t been there.
Q. Was it all Mr. Davey’s fault? A. Why it was his fault. If he hadn’t had hold of the handle at that time, I wouldn’t have gotten hurt.
Q. Your pulling; the force you were using, wouldn’t have brought the tie against your foot ? A. No, it wouldn’t because if a man lost his hold, he would have went over and the tie would have stopped.
Q. Now Mr. Miller after you. fell down, and recovered your balance
Q. lie had gone back where Mike Davey' was working on the track ? A. No one had come down there where I was at all.
Q. Isn’t it time Mr. Miller that just as soon as you started down the embankment with that tic;, pulling that pick — as soon as you started away from the track that Mr. Davey went back to assist his father in putting in the new tie? A. No. sir.
Q. That is true isn’t it? A. After we got the tie down, lie went back.
Q. And you want it understood here now that he kept pulling down the side of the embankment, 7 or 8 feet high, all the time, until you reached the bottom? A. Tes sir, that is it.
Q. When you recovered your balance, he was back up on the track? A. Tes sir. . . .
Q. Isn’t it true Mr. Miller, that on the 11th day' of June or a month after the accident, that you didn’t blame Mr. Henry' Davey for this accident in any way'? Isn’t that true? A. No, I didn’t blame Henry' Davey. If he hadn’t had hold of the pick, I wouldn’t have blamed him. But I told him it that way, as I told Mr. Hendershot, if we had two picks, I would never got hurt. . . .
On re-direct examination plaintiff testified:
Q. Now I don’t know if you have made it just plain to the jury as to the pulling out of that tie, and pulling it down the side of the embankment; just explain to the jury whether you went straight down, or whether you shifted to one side or what. A. We started straight down and then we kind of swung to the left. He had hold of the left side of the pick and then I met this rock.
Q. Did he crowd you over to one side ? A. No, he was on the left side, going so fast that I went with him.
Q. He was a younger man than you and stronger ? A. A good deal younger than me, yes.
Q. Ton were how old when you got hurt? A. Forfy'-eight when I was hurt. ...
Q. Did Henry' Davey', the man working with you have hold of the
Q. The pick was still in the tie ? A. Yes sir, when it struck me.
Q. And he was pulling on it at the time ? A. Yes sir, he was pulling on it at the time.
Q. Then from the time the tie was pulled out you didn’t go straight down? A. No we didn’t.
Q. He shoved you over ? A. No he didn’t shove me, he pulled me, he was on the left hand side of me.
Q. Kind of pulled'you over towards his side? A. Yes sir. . . .
On re-cross-examination ho testified:
Q. How much do you weigh Mr. Miller? A. Oh, I don’t know, about one hundred and fifty.
Q. Do you know how much Henry Davey weighs ? A. All of that if not more.
Q. He is a heavier man than you aro ? A. I think he is.
The foreman who was called as a witness for the defendant, testified that the removal of the ties, including the particular tie in question, was being done according to his directions. Henry Davey denied that he had broken the handle of his pick. He admitted, however, that only one pick was being used by himself and the plaintiff on that particular day. He testified further, “We usually have two picks but didn’t happen to have only one that day.”
It is well settled that negligence is the basis of liability under the Federal Employers’ Liability Act, and that there can be no recovery under such act in the absence of negligence on the part of the railway company or some of its employees. Wingen v. Minneapolis & St. P. & S. Ste. M. R. Co. 42 N.D. 517" court="N.D." date_filed="1919-11-16" href="https://app.midpage.ai/document/wingen-v-minneapolis-st-paul--sault-ste-marie-railway-co-6738792?utm_source=webapp" opinion_id="6738792">42 N. D. 517, 521, 173 N. W. 833. Generally negligence and proximate cause are questions for the jury. 29 Cyc. 632, 634 and 639. They become questions of law only when the facts are undisputed and reasonable men in the exercise of reason aud judgment can draw only one inference from them. While the question of negligence in this ease is a close one, we do not believe it can.be said, as a matter of law, that the injury sustained by the plaintiff was not caused by the negligence of the defendant and its employees. It is
It is, also, contended that the plaintiff assumed the risk of the injuries which he sustained. Respondent, however, claims that the question of assumption of risk is not involved on this appeal. ITe says that upon the trial of the action that question was, in effect, withdrawn from the case. In support of this he calls attention to the following statement in the order denying the motion for judgment notwithstanding the verdict, or for a new. trial: “The attorney for the defendant having stated in open court at the trial of said action that the only question at issue was that of negligence on the part of the defendant and contributory negligence on the part of the plaintiff, and that there was no question of assumed risk involved in this action.”. We must, of course, assume the facts to be as so stated. It is, also, significant that the trial court gave no instruction on the subject of assumption of risk, and no instruction was requested. Otherwise, the court gave full and explicit instructions on the questions of negligence and contributory negligence and on the doctrine of comparative negligence!, embodied in the Federal Employers’ Liability Act.
Of course, in so far as the phrase, “assumption of risk” is used merely “to connote the general rule that the master is not liable for injuries which are not due to fault on his part” (3 Labatt, Mast. & S. § 1186a, page 3189) the question is involved in this appeal; but in so far as concerns the doctrine of assumption of risk in its true sense, viz.: — that the servant assumed risks which existed by reason of the negligence of the master, we do not believe the question is properly reviewable on this appeal. See 3 C. -I. page 099. See also Illinois C. R. Co. v.
In this case, however, the injuries were sustained while the plaintiff and his co-employee were engaged in the performance of work in a somewhat unusual manner, and with inadequate tools. The work was so performed under the immediate direction and orders of the foreman. In the circumstances it would seem that the question of assumption of risk was in any event one for the jury. 4 Labatt, Mast. & S. § 1362, p. 3920. See also 26 Cyc. 1221; Chesapeake & O. R. Co. v. De Atley, supra. And, of course, the plaintiff did not assume the risks of any injury caused by the negligence of a fellow servant, for while it is true the Federal Employers’ Liability Act did not abolish the doctrine of assumption of risk (Seaboard Air Line R. Co. v. Moore, 228 U.S. 433" court="SCOTUS" date_filed="1913-04-28" href="https://app.midpage.ai/document/seaboard-air-line-railway-v-moore-97858?utm_source=webapp" opinion_id="97858">228 U. S. 433, 57 L. ed. 907, 33 Sup. Ct. Rep. 580; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492" court="SCOTUS" date_filed="1914-04-27" href="https://app.midpage.ai/document/seaboard-air-line-railway-v-horton-98173?utm_source=webapp" opinion_id="98173">233 U. S. 492, 58 L. ed. 1062, L.R.A.19150, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834), it did abolish the fellow servant rale, and imposes liability for an employee's injury, “resulting in whole or in part from the negligence of any of the officers, agents or employees” on the carrier.
The judgment appealed from is affirmed.