126 Minn. 133 | Minn. | 1914
Appeal by plaintiff from an order denying a new trial.
The action is one to recover for death by wrongful act. On the trial, after plaintiff had offered testimony tending to prove only formal allegations of his complaint, the court sustained defendant’s objection, interposed at the outset but not ruled upon until later, to the introduction of any evidence, upon the ground that the complaint did not state a cause of action. The pleading attacked, after requisite formal allegations, alleged the following: Employment of deceased by defendant for a long time preceding his death, as a flagman at a highway crossing in the village of Montgomery, his duty requiring him to be at and upon the crossing of the street and defendant’s railway tracks for the purpose of notifying and protecting travelers on the former, and to perform the usual duties of flagman. During the period of employment it was defendant’s duty and custom to notify him by signal before undertaking to move cars over the crossing, and before doing anything that might cause cars to be so moved. Immediately prior to the accident, an empty car stood upon one of the tracks crossing the highway and near thereto, be
1. The ruling was erroneous. The complaint stated a cause of action. Defendant’s contention, that it owed deceased no duty except to refrain from wilfully injuring him after knowledge of his being in a place of danger, is untenable. It was required to use ordinary care for his safety. Furthermore, he had the right to rely to a reasonable extent upon observance of the custom alleged, and the latter, if proved, would obligate defendant to use vigilance in complying therewith. Defendant could not, by long usage, establish a method of doing the work, involving the safety of its employee and acted and relied upon by him, and then rightfully discontinue the same without notice or necessity. Negligent noncompliance therewith, causing accident or injury, would create liability. Anderson v. Northern Mill Co. 42 Minn. 424, 44 N. W. 315; Flanders v. Chicago, St. P. M. & O. Ry. Co. 51 Minn. 193, 53 N. W. 544; Westaway v. Chicago, St. P. M. & O. Ry. Co. 56 Minn. 28, 51 N. W. 222; Hooper v. Great Northern Ry. Co. 80 Minn. 400, 83 N. W. 440; Floan v. Chicago, M. & St. P. Ry. Co. 101 Minn. 113, 111 N. W. 951. These cases recognize the principle above stated.
2. The answer admitted deceased’s employment as a crossing flagman “for the purpose of observing the passage of trains over the same and notifying and warning those about to cross said tracks, of the movement of cars over the same.” No issue was joined thereon in the reply. It is insisted that the court’s ruling was justified thereby. We are unable to see how it affects the matter.
Neither can we sustain defendant’s contention that it is apparent
Order reversed.