132 Minn. 195 | Minn. | 1916
Defendant railroad company was engaged in constructing a new station building in its station yards in Albert Lea, this state. At the instance of the company, defendant telephone company, long prior to the commencement of the new structure, had installed a telephone in the old station, connected with the necessary telephone wires which extended over the yard tracks of the railroad company. During-the progress of the work oh the new building it became necessary to remove or elevate the wire as it extended over the same, and the telephone company was called upon and made the necessary alterations. The wire was lengthened and raised so that the roof of the new building could be laid. Both before and after this change the wire was at a sufficient distance above the railroad tracks so as not to interfere with the switching operations of the railroad company upon the tracks over which the wire extended. On the day plaintiff received his injuries the building contractor found it necessary to again change the wire as it passed over the new building, and without notice to the telephone company the employees of the contractor made the necessary change. As so changed the wire was caused to sag over the railroad track and so low as to render switching operations dangerous to the railroad employees who were required to ride upon the tops of cars being switched over and upon, the particular track. Plaintiff was in the employ of defendant as a switchman in the Albert Lea yard and a member of the night crew. On the night following the
The assignments of error will be disposed of in the order presented in appellant’s brief.
The act of the building contractor who, without notice to either the railroad company or telephone company, through his agents and employees, in changing the wire attachments so that they hung so low over the railroad track as to endanger the safety of those engaged in switching operations was clearly an act of negligence. But no claim was made against the contractor, nor was it claimed that either the railroad or the telephone company was responsible for his negligence. Thomas v. Wisconsin Central Ry. Co. 108 Minn. 485, 122 N. W. 456, 23 L.R.A.(N.S.) 954. The theory of the action as against the railroad company was that certain of its employees; fellow servants of plaintiff, knew of the dangerous situation created by the act of the contractor, and negligently failed in their duty to remedy the same or notify superior officers thereof, in consequence of which plaintiff, while engaged in the discharge of his duties, unaware of the danger, came in contact with the wire and was injured. If the evidence sustains the position of plaintiff in this respect, his right of recovery against the railroad company is clear, for both under the state and Federal statute the company is liable for injuries to servants which are caused by the negligence of fellow servants. There can be no question that, if a fellow servant of plaintiff had actual knowledge of the dangerous condition of this wire and it was his duty under his employment either to remove the danger or notify his superior officers thereof, and he failed to discharge that duty, such failure would constitute negligence which will support the action. And again, if he in fact notified his superior servant, the yard switching foreman, of the clanger, and that employee of defendant failed in his duty to remedy the defect, or notify employees under him of the presence of the danger, his failure of duty would likewise be an act of negligence for which the company is liable. Bergland v. Illinois Central R. Co. 109 Minn. 317, 123 N. W. 928; Worden v. Humeston & S. Ry. Co. 76 Iowa, 310, 41 N. W. 26; Reed v. Burlington, C. B. & N. Ry. Co. 72 Iowa, 166, 33