157 Minn. 325 | Minn. | 1923
Action for damages for the death of John D. Derby, alleged to have been caused by the defendant’s negligence. Plaintiff recovered a verdict and defendant appealed from a denial of its motion in the alternative for judgment or a new trial.
The accident happened in appellant’s railroad yard at Hayfield in this state. Derby was on his way to the roundhouse on the west side of the yard, where he operated the pump by which the water tank was filled. He lived east of the yard and near Grove street. This street ended at the east side of the yard and nearly opposite the roundhouse. Many of appellant’s employes came to and went from the roundhouse by way of this street, crossing on their way the main line track, a passing track and numerous side tracks. They had done so for such a length of time and so constantly and openly that a jury- might well find that appellant knew of it and consented to it. About 95 rods north of Grove street appellant’s right of way is intersected by Broad street, where the depot is located. No street
Appellant’s first contention is that there was no evidence to warrant a finding of negligence. Derby was not a trespasser. Ap
Appellant interposed as defenses contributory negligence and assumption of risk. Under both Federal and state employers liability acts, assumption of risk is a good defense, unless a violation of a statute enacted for the safety of employes contributed to the injury or death. On the other hand, contributory negligence is not a complete defense. If proved, it diminishes the damages recoverable. Before these statutes were enacted, it was not always necessary to distinguish one defense from the other, but now precision on this point is important, for an employe may be denied a recovery if contributory negligence on his part is mistaken for assumption of risk, or the employer may be deprived of a good defense if the voluntary assumption of a known risk is mistaken for contributory negligence.
This court has said that the two defenses are separate and distinct; that contributory negligence is a breach of the duty to take care, and that assumption of risk is based on the principle expressed by the maxim volenti non fit injuria and not on an implied agreement that the servant will take upon himself the risk of injury from such dangers as are incident to the employment, as is held by some courts, Rase v. Minneapolis, St. P. & S. S. M. Ry. Co. 107 Minn. 260,
Much difficulty has been experienced in determining whether the one defense or the other, or both, may be interposed under the particular facts of a case. It has been said of assumption of risk that it shades into negligence as commonly understood, Schlemmer v. Buffalo R. & P. Ry. Co. 205 U. S. 1, 27 Sup. Ct. 407, 51 L. ed. 681; that the two defenses in practical operation often approach each' other very closely and sometimes may be invoked on the same state of facts, St. Louis Cordage Co. v. Miller, 61 C. C. A. 477, 126 Fed. 495, 63 L. R. A. 551; that the two concepts seem to overlap, but that assumption of risk involves the notion that the master is absolved from negligence by the consent of the servant who works with defective appliances, with notice of the defect and appreciation of the danger, Maloney v. Cunard S. S. Co. 217 N. Y. 278, 111 N. E. 835; that they have so much in common that they are habitually confused, but that assumption of risk is broader than contributory negligence. 1 Street, Foundations of Legal Liability, 150. For an interesting exposition of the subject with reference to the Federal Act see 28 Harv. Law Rev. 163.
In Wherry v. Duluth, M. & N. Ry. Co. 64 Minn. 415, 67 N. W. 223, followed in Sikorski v. Great Northern Ry. Co. 127 Minn. 110, 149 N. W. 5, the act of a pedestrian who climbed between two cars when
It would seem that Derby’s -act, like the acts of Wherry and Sikorski in the cases cited, is properly characterized as negligent. Do facts which are ground for the defense of contributory negligence as against a stranger become a basis for the defense of assumption of risk if the injured person happens to be an employe of the defendant? It seems to us that the nature of the act and not the actor’s relation to the defendant should be the test for determining whether the proper defense is contributory negligence or assumption of risk, or both. Such a test may lack definiteness and certainty, but it is impossible to draw a line accurately separating one defense from the other. Cases will arise which come so near the line that it will be hard to determine on which side of it they fall. It has been said that just what is necessary to constitute an assumption of a risk by the person injured which will relieve the other party of responsibility can be truly said to constitute the great unsolved problem of the law of negligence. 1 Street, Foundations of Legal Liability, 150.
In the instant case the court denied appellant’s motion for a directed verdict and submitted both defenses to the jury. They
In the Wherry case plaintiff knew that the street was obstructed by cars to which an engine was attached. He must have known that the train might be moved at any moment. He waited a few minutes, expecting it to start, and then, becoming impatient, attempted to climb up between two cars. In the Sikorski case, plaintiff failed in his effort to show justification for a belief that the crossing was not blocked by a live train. The cars were on the main line where cars were not left standing without engines. He became weary of waiting and took the chance of climbing over the coupling between two cars. In Helback v. Northern Pac. Ry. Co. 125 Minn. 155, 145 N. W. 799, plaintiff knew that the crossing was
The negligence of a railway employe may be a complete defense, notwithstanding the provisions of the liability acts, for in any case it is essential to a recovery that the company’s negligence be established. But if the injury complained of was caused solely by the negligent act of the employe, .the company being blameless, there can of course be no recovery. Thornhill v. Davis (S. C.) 113 S. E. 370, 24 A. L. R. 617. For the reasons already stated, this is not such a case.
Appellant contends that the fatal injury was not inflicted while Derby was employed in interstate commerce, and hence there can be no recovery under the Federal Employers Liability Act upon which this action was based. Derby was crossing his employer’s yard to reach his place of work. He had no other purpose in view. The time to begin work was closely approaching. He was performing a required duty which was a necessary incident of his employment, and it would be too narrow a construction of the liability act to hold that he was not then employed in interstate commerce. Davis v. Chicago, R. I. & Pac. Ry. Co. 134 Minn. 49, 158 N. W. 911; Stavros v. Chicago, M. & St. P. Ry. Co. 151 Minn. 251, 186 N. W. 942, 24 A. L. R. 630; Erie R. Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. ed. 1057, Ann. Cas. 1918B, 662; Atl. Coast Line R. Co. v. Williams, 284 Fed. 262: Philadelphia, B. & W. R. Co. v. Tucker, 35 App. D. C. 123, L. R. A. 1915C, 39; Knowles v. New York, N. H. & H. R. Co. 223 N. Y. 513, 119 N. E. 1023.
Order affirmed.