230 N.W. 125 | Minn. | 1930
Plaintiff appeals from an order denying his motion for a new trial. He brings the action to recover damages for injury to his health, claiming that while in the employ of the defendant for a period of some six years as superintendent and inspector of its factory defendant failed to comply with G. S. 1923 (1 Mason, 1927) § 4174, and that by reason thereof he contracted tuberculosis, from which he is now suffering. This disease does not come within the workmen's compensation act. Donnelly v. Minneapolis Mfg. Co.
G. S. 1923 (1 Mason, 1927) § 4174, upon which the action is based, reads:
"In every place of employment the employer shall provide in each workroom thereof, proper and sufficient means of ventilation, and shall maintain proper and sufficient ventilation. If excessive smoke, steam, gas, fumes, vapors, dust or other impurities are created or generated by the manufacturing process or handicraft carried on therein, in sufficient quantities to obstruct the vision, or to be irritating, obnoxious, or injurious to the health or safety of the employes *23 therein, the rooms shall be ventilated in such manner as to remove them or render them harmless, so far as is practicable."
There are further provisions as to other matters not here relevant, and provisions making it the duty of the commissioner of labor to enforce the act and authorizing him to order installation of necessary appliances. There is a general penalty provision.
Plaintiff claims that metallic dust, noisome and poisonous vapors and gases were constantly generated in the factory; that he was required to be constantly therein and contracted the disease therefrom; that defendant had notice and knowledge of the situation and failed to remedy it or comply with the statute cited as to ventilation.
1. It is apparent that if the rule of assumption of risk applies the plaintiff, as superintendent and inspector of the factory, had as good or better knowledge of the condition and danger as defendant, and the jury might well find that he assumed the risk. The court submitted to the jury the question whether plaintiff had assumed the risk. The important question is whether the doctrine of assumption of risk applies to the case. The rule followed in some federal decisions and in the decisions of the greater number of state courts is that, where the violation of a statute enacted for the protection of employes causes injury to an employe, the doctrine of assumption of risk does not apply. 39 C.J. 701, and note 82. The reason for these holdings is generally stated to be that assumption of risk is a result of the contract of employment and that it is unlawful and contrary to public policy to permit parties to contract, either expressly or impliedly, to violate a statute. If it is against public policy so to contract it would seem equally against public policy to hold that assumption of risk applies where there is no such contract.
A smaller number of state courts hold that the doctrine of assumption of risk does apply in such cases. 39 C.J. 704, and note 8. Minnesota is there classed as following the minority rule, on authority of Anderson v. C. N. Nelson Lbr. Co.
The doctrine of assumption of risk is not favored and should be limited rather than extended. The latest Minnesota decision called to our attention, where the doctrine was held to apply in cases based on the violation of a statute requiring an employer to provide safety appliances or safe instrumentalities or places of work for the protection of his employes, is the Glockner case,
In Dusha v. Virginia Rainy Lake Co.
In our present case no question of contributory negligence is before us. Upon a careful consideration of legislation of this character in this state and the public policy therein indicated, the changing conditions in industrial relations between employers and employes, and in harmony with decisions in the greater number of the states, we conclude that the holding in the Anderson case,
This disposes of the present appeal and necessitates a new trial. The trial court followed our prior decisions, and this court must assume the responsibility for the result arrived at.
2. In view of a new trial this reference to other assignments of error may be made: Language used in the charge, to the effect that plaintiff must show that the disease from which he is now suffering was caused solely and directly by the alleged negligence of the defendant and that such negligence was the direct and proximate cause of his disease, is challenged as error. Under the pleadings and evidence presented we think this was not error. If any error in that regard, it should have been called to the attention of the court at the time. Neither did the court err in excluding exhibit B, a mere notice from an inspector of the industrial commission given some months after plaintiff ceased to be in defendant's employ.
Order reversed and a new trial granted. *27