38 Minn. 14 | Minn. | 1887
This action is brought to recover damages resulting from the alleged negligence of defendants, causing injuries to the plaintiff while in their employment in their saw-mill. The appeal is from an order sustaining a demurrer to the complaint, on the ground that it does not state a cause of action. The defendants’ contention is that the complaint is insufficient (1) because it does not allege anything that amounts to negligence on part of defendants; and (2) that it affirmatively appears that plaintiff himself was guilty of contributory negligence, or, at least, voluntarily assumed, as incident to his employment, all the risks of which he now complains.
The complaint, although very ingeniously framed, is in some respects so conspicuous for what it omits to allege, as well as for what it does allege, as to be suggestive of possible difficulty in establishing a cause of action by the evidence; yet we are of opinion that upon its face it is good. The question of negligence is one of mingled law and fact; and hence an allegation of negligence or carelessness, as applied to
As to the question of contributory negligence, it must be borne in mind that this is purely a matter of defence, which the plaintiff is not bound to negative in his complaint; also that, to constitute an assumption of risks by a servant, it is not necessarily enough that he knew, or ought to have known, the actual character and condition of the defective instrumentalities furnished for his use, but he must also have understood, or, by the exercise of ordinary observation, ought to have understood, the risks to which he is exposed by their use. Russell v. Minn. & St. Louis Ry. Co., 32 Minn. 230, (20 N. W. Rep. 147.) This must be determined from all the facts and circumstances of the case. Hence a court could not say, as a matter of law, from the allegations of a complaint, that the plaintiff was guilty of contributory negligence, or had voluntarily assumed all the risks which
While we think it affirmatively appears from the complaint that this was not a case of a master directing a servant, under a pressing emergency, to engage in some extra-hazardous work outside of that which he had contracted to perform, but a voluntary change of work on part of the latter, yet we think the complaint does not affirmatively show any such conclusive state of facts as that supposed. We are therefore of opinion that the demurrer should have been overruled, and the defendants allowed to answer.
Order reversed.