42 Minn. 87 | Minn. | 1889
This action is prosecuted under the statute to recover for the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant. The plaintiff secured a verdict, but the court granted a new trial, assigning as one of the reasons therefor, in effect, that he did not consider that the verdict was justified by th'e evidence. From that order this appeal was taken. A part of the defendant’s line of railroad consists of a short section, extending from the depot in the city of Mankato, north-easterly, less than four miles, to a point on the main line called “Mankato Junction.” About one mile out from the Mankato depot, on this short section of road, is a switch, and a spur or side track about 600 feet in length. This side track is in the vicinity of and near a stone quarry, called “Saulpaugh’s quarry,” as appears both from the pleadings and evidence, and was used principally as a track where cars were left by the defendant. to be loaded with stone and brick; and from thence the loaded cars were taken out by the defendant for transit over its road. The stone quarry itself was not in sight from this switch, it being
It is probable that the insufficiency of the evidence upon which the granting of a new trial was based was with respect to the point as to whether the deceased had not been so warned of this danger when he was employed for this service that he must be deemed to have voluntarily assumed the risk. We might rpst our decision affirming the order of the court below upon the rule laid down in Hicks v. Stone, 13 Minn. 398, (434,) deciding, as we do, that the evidence does not so clearly and palpably support the verdict that the order of the trial court should be reversed; but, in view of another trial, it is expedient that we express our opinion somewhat further upon this feature of the case.
It is contended on the part of the plaintiff that the notice of the danger from the stone piles was insufficient to cast upon the servant the extraordinary risk from that cause, for the reason that Brown referred to the stone piles as being at Saulpaugh’s quarry, when in fact, as it is claimed, they were not at the quarry; and, further, because even the location of the quarry wa| not defined by Brown. It is too well settled by the decisions of this court, in accordance with the law as it has been generally declared, to be now questioned, that in general a servant assumes, not only the risks ordinarily incident to his occupation, but such extraordinary risks as he may knowingly and voluntarily encounter. Fleming v. St. Paul & Duluth R. Co., 27 Minn. 111, (6 N. W. Rep. 448;) Hughes v. Winona & St. Peter R. Co., 27 Minn. 137, (6 N. W. Rep. 553; Clark v. St. Paul & Sioux City R.
Order affirmed.
Note. A motion for a reargument of this case was denied January 14, 1890.