66 P. 828 | Idaho | 1901
— This case is here for review from a judgment of the district court of Kootenai county. The ease was tried by a jury, and on January 25, 1900, a verdict was returned in favor of the plaintiff for the sum of $1,995. The pleadings are voluminous, and will be referred to here in an abbreviated form, but sufficiently to show the conditions upon which the case was tried. The amended complaint avers: That the defendant is a corporation existing under and by virtue of the laws of Wisconsin, and engaged in operating a line of railroad from St. Paul to the Pacific Ocean, and traverses the entire width of Kootenai county, this state. That the plaintiff is a carpenter by trade, and has been engaged in such business the past thirty years. That from about the 1st of July, 1896, to the 16th of September, 1896, both inclusive, he was employed by the defendant as a carpenter upou its bridges or trestles crossing the Lake Pond d’Oreille, in said county, at and for certain hire, and was required, aa a part of his duties, to handle lumber with which such bridge or trestle was being built by said defendant; also to unload such lumber from the push car, which was used in bringing said lumber over the tracks to said bridge or trestle. That said bridge or trestle is narrow, and crossed by a single track, and there were no platforms on the side, except at long distances apart on said bridge or trestle, which is more than one mile in length, and its entire length crosses water of great depth. That whilst plaintiff was engaged in such work he was under the direction and control of foremen employed by the defendant, whose orders and instructions it was his duty to obey, to wit, one MeAuliffe and one John Holstroem, who were, as plaintiff is informed and believes, vice-principals of defendant,
Plaintiff, Zienke, testified that he was working for defendant in September, 1896, “and on the sixteenth of said month, on the day of the accident, and at the time, John Holstroem was with the hand-car, when I looked around. I guess he was in the act of getting off the hand-car, and he said, ‘Are you hurt ?’ I said: ‘Yes. I think I do feel it.’ He said, ‘Well, I couldn’t help it.’ I said, ‘Why?’ T could not help it. The brake did not work very good.’ McAuliffe, foreman of our gang, came up then. I considered John Holstroem, the way he acted always, that he was above me — second foreman. He worked as a carpenter there. McAuliffe came up there and asked me if I was hurt. He says, ‘It is carelessness.’ I went back to work in two weeks on the same bridge gang. Mr. McAuliffe was not there. Was working for the Northern Pacific Railroad Co. I worked there one day, when I was laid off — was told I was not wanted any more. Mr. Holstroem laid me off — this same John Holstroem who was driving the hand-car when I was hurt. A short time before I was hurt, I had been working under John Holstroem as my boss.” On cross-examination he said: “In September, 1896, he was an experienced man, and knew all the dangers of being a carpenter, and being in high places, and working among men, whose tools are liable
With this statement of the pleadings and the evidence, should the motion for a nonsuit have been sustained? If so, it is wholly unnecessary for us to pass upon a number of questions presented by the record. The plaintiff testifies that he was an experienced bridgeman, having been engaged in that class of work for a number of years; that he was familiar with the dangers connected with the class of work in which he was engaged at the time of the accident. He testifies that the accident was attributable to the carelessness and negligence of one John Holstroem in pushing a hand-car against his leg with such force as to cause the injury, and that said Holstroem was an employee of the defendant in a capacity superior to him. On cross-examination he testifies that one McAuliffe was the foreman of the gang ¿t work on the bridge or trestle at the time of the accident, and was present at the time, giving orders; that said McAuliffe employed him to work for defendant in the capacity of a bridge carpenter; that he was assisting in unloading the push-car, when said Holstroem pushed the handcar against his leg with sufficient force to cause the injury; that Holstroem was also a bridge carpenter. Three witnesses
The first question, Was Holstroem a fellow-servant with plaintiff, or did he occupy a position in the employ of the company in any way superior to the plaintiff? We think the evidence is conclusive that they were fellow-servants employed as bridge carpenters by defendant, and we need not look beyond the testimony of the plaintiff to arrive at this conclusion. If they were fellow-servants, can the plaintiff recover in this action? In Donnelly v. Bridge Co., 117 Cal. 417, 49 Pac. 559, the court says that the superintendent and the injured workman, as to the act causing the injury, were fellow-servants. In Brunell v. Railroad Co., 34 Or. 256, 56 Pac. 129, the su
in discharge of his duty, with full knowledge of the nature and extent of the dangers of the service he is engaged in, or having the means of being informed of such facts and conditions by the exercise of ordinary care, voluntarily assumes such risks, and is thereby injured, and the employer is guilty of no laches •or misconduct unknown, to the servant, or which, with ordinary care he might have known, he cannot recover for such injury.” The learned judge in whose court this case was tried below recognized this rule in his instructions, but they seem to have been entirely ignored by the jury. On this question see Minty v. Railroad Co., 2 Idaho, 471, 21 Pac. 660, 4 L. R. A. 409; Brunell v. Railroad Co., 34 Or. 256, 56 Pac. 129.
The defendant assigns forty-four errors occurring on the “trial of this cause, but, in our view of the case, we deem it unnecessary to pass upon a large number of them.
With the pleadings as we find them, the testimony as appears from the record, and the law as shown by the authorities above cited, can this judgment stand? We think not. The judgment of the lower court and the order denying defendant a new trial are reversed, with costs to appellant.