Karas v. McAdoo

Robinson, J. This is a personal-injury suit. Defendant appeals from a judgment on a verdict for $1,200. In August, 1918, the plaintiff was in the employ of the Great Northern Railway Company as a laborer. He and others were piling up railroad ties as they were thrown from the cars. The ties were piled in bunches of eight tiers, and the top of each tier was about 6 feet high. The ties were water soaked and weighed about 300 pounds. When putting on the top tier, the plaintiff had to lift his end of the tie 5 feet or more. This was done under the direction of the foreman of the company. While making such a lift the end of the tie slipped' from the hands of the coworker of the plaintiff, and, falling to the ground, it jarred from the hands of the plaintiff the end of the tie, and it fell against him, knocked him down, and fell on his leg and foot with such force that it caused him to faint and become unconscious. His foot was badly bruised. The evidence shows that the work was done under the direction of the foreman of defendant, and it was dangerous for one man to life such heavy water-soaked ties to such a height, and that in such lifting it was no uncommon thing for men to get hurt. Now, if defendant had provided two skids about 12 feet long, then all of the lifting and all of the danger might have been avoided by [346] placing one end of each skid on the ground and the other end on the pile of ties, and skidding or slipping each tie up the skids. That would have made the work light and easy. The law of the case has been stated by this court. Lilly v. Elm Point Min. Co. 45 N. D. 464, 178 N. W. 128. “One who, for a good consideration, promises to serve another, must perform the services, and must use ordinary care and diligence therein.” Comp. Laws, § 6112. “An employee must substantially comply with the directions of his employer concerning the services in. which he is employed.” Comp. Laws, § 6115. “An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in-which he is employed.” Comp. Laws, § 6109. “An employer must, in all cases, indemnify his employee for losses caused by the former’s want of ordinary care.” Comp. Laws § 6108. “The common carriers by steam railroads are liable in damages for injury to employees resulting, in whole or in part, from the negligence of any officer, agent, or employee of such carrier, or by reason of any defect of insufficiency due to its negligence or defect in its cars, engines, or appliances.” Laws 1915, chap. 207. Here there was a defect in the appliances for piling up the heavy water-soaked ties, and by reason of such defect the injury resulted. As in the case cited, the court said: “The superintendent had no right to order or even permit him [the plaintiff] to do what was dangerous or to work in an unsafe place.” So, in this case, the company, by its foreman, had no right to order or permit the plaintiff and his coworker to take the chances of injury by lifting heavy water-soaked ties to the heighth of 5 feet. After the injury the plaintiff was taken to a hospital of defendant, and there nursed and treated for twenty-three days, and then given $70 on signing a release of damages. But as the release was made within thirty days after the injury, it was voidable. Laws 1917, chap. 179. It- is insisted that the verdict is excessive, but that was a question of fact for the jury, and another jury might well give a greater verdict. When a party has to receive his damages at the end of a lawsuit, the expense is justly a matter of consideration. It is more than [347] probable that, before any action was commenced or expense incurred, defendant might have made a fair and legal settlement for a sum much Iras than the verdict. Poor men are not commonly fond of litigation. The record shows no material error. Defendant has had a fair trial. The verdict is well sustained by the evidence. Affirmed. Christianson, Ch. J., concurs.