27 Minn. 367 | Minn. | 1880
The plaintiff was employed by defendant to work in and about its warehouse or freight depot. He testifies in one place that he was employed “to handle freight— load and unload — whatever there was to be done around;” and again, that he “had to handle boxes and sacks and everything else;” and again, in answer to the question “You were employed to do whatever freightage was done either in loading or unloading cars?” he replied, “Yes, sir, anything, anything. I handled all kinds of freight, and that was what I was employed for.” It appeared from his testimony that he commenced working in the warehouse about six years-before the action hereinafter mentioned; that for four years before the accident he had not been away from it “any length of time,” and that at the time of the accident he was 25 or 26 years of age. While engaged with other employes of defendant in moving a millstone from the scales in the warehouse to a car standing by the outside platform of the warehouse, he received the injury for which he seeks to recover damages in this action. The stone weighed from 1,500 to 2,000 pounds, and, being a top stone, it had a “bulge” on one side, the other being flat. The floor of the warehouse and of the platform at the place where the stone was rolled on its way to the car was uneven.
•The plaintiff claims that the moving of a stone of this kind and weight, with safety to the persons moving it, requires in such persons, or at least in some person- under whose immediate and personal direction it is done, experience in doing that particular kind of work; that on account of the great weight, the round form, and the bulge upon one side, dangers attend the moving of such stones, which none but such, an expert can be expected to be acquainted with. He also claims that they cannot be moved over an uneven surface without great danger to the persons moving them, and,'
In our opinion this was entirely proper. As to the unevenness of the floor, it appeared affirmatively that plaintiff was aware that it was uneven, and, though he were not (as he testifies) aware of the degree of its unevenness, this was a matter so open to ocular observation that, in consequence of the length of time during which he had been engaged in handling freight of all kinds in this very warehouse, he would stand in no better position than if he had actual knowledge of it as it really was. ■ He was bound to make use of his eyes to see a source of danger which was open and apparent to anybody who would use his eyes. He was not a child, but had presumably reached years of discretion. As to the danger and difficulty of handling the stone on account of its weight and form, and of the bulge which made it heavier on one side than the other, this is a danger and difficulty which arises from the ordinary operation of familiar laws of gravitation, and from nothing else.
With this ordinary operation of the laws of gravitation every man who has reached the age of twenty-five years, and of ordinary capacity, must be presumed to be acquainted, especially if for years he has been engaged in handling freight of all kinds about a railroad warehouse. If, then, he engages
On any other basis than this, it would be impracticable to carry on any extensive business like that of railroad corporations. Unless it affirmatively appears that a master knows or ought, to have known that an employe, on account of immature age, or some incapacity, cannot reasonably be expected to possess ordinary common sense and judgment, it must be presumed that the employe does possess them, and will to a reasonable extent act accordingly, and any neglect or failure to do so must be regarded as a risk of the employment, which the employe takes upon himself. Even if he were directed (as it is claimed the plaintiff.was in this case) by a fellow employe, holding a position over him, to move the stone without help sufficient in numbers to enable it to be done with safety, this would not alter the result. The negligence of such an employe would be the negligence of a fellow-servant, for the consequences of which the principal would not be liable. Brown v. Winona & St. Peter R. Co. ante, p. 162.
Upon these grounds, we are of opinion that the action was properly dismissed.
Order affirmed.