Brockett v. Mietz

Per Curiam: The plaintiff has recovered a verdict for personal injuries received on December 16, 1916, while at work for the defendant. A load of logs was being hauled to a mill. The plaintiff was the teamster. The defendant was present when the logs were loaded. He thought it was unnecessary to bind the load, but a failure to do so resulted in the load tipping over or in some way becoming disarranged, injuring the plaintiff. The defendant is a farmer and the logs were cut on his farm and the plaintiff may fairly be classed as a farm hand. The question is whether plaintiff’s employment is within the Workmen’s Compensation Law. The trial judge held it was and if he is right it was proper to instruct the jury as he did, that if the defendant was negligent neither thé plaintiff’s contributory negligence nor the assumption of risk would bar a recovery. (See Workmen’s Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 11, as amd. by Laws of 1916, chap. 622.) While lumbering and logging are classed as hazardous employments by the Workmen’s Compensation Law (§ 2, group 14, as amd. by Laws of 1916, chap. 622) and while plaintiff, the employee, would be included within the general language of subdivision 4 of section 3 (as amd. by Laws of 19] 6, chap. 622) as engaged in a hazardous occupation, still it [344] is expressly provided in subdivision 4 of section 3 of the act that the term “ employee ” shall not include farm laborers or domestic servants, so that even if a farm laborer is engaged in logging he is specifically excepted from the provisions of the act. We think the jury could find that the logging was farm work. It was in the winter time; defendant and two or three men were getting out logs on his farm, and merely because he was going to sell the lumber did not, we think, take it out of what is generally understood to be farm labor. The judgment should be reversed, with costs to the appellant to abide the event, and a new trial ordered. All concurred, except Hubbs, J., who dissented and voted for affirmance in a memorandum.