Kutchera v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

Johnson, J. This is an appeal from an order of the district court of Burleigh county, overruling a demurrer to the complaint, interposed upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The plaintiff alleges that the defendant is a corporation operating a system of railroads thru the state of North Dakota and elsewhere;’that in October, 1921, the defendant “contracted with and engaged the plaintiff to overhaul and repair the gasolene engine of a certain gasolene propelled vehicle consisting of a small gasolene engine mounted on [600] a frame and attached to which frame were three flanged wheels, suitable for travel upon common railroad rails, v'hich said vehicle is commonly called a three wheeled gasolene speeder or a speeder.” It is further alleged that the machine aforesaid was taken by the plaintiff, pursuant to the agreement' aforesaid, to his place of business, for the purpose of overhauling and repairing the engine attached thereto; “that upon examining and overhauling said engine . . . plaintiff determined and found that it would be advisable to try out and test the said engine by operating said speeder upon the railway tracks of the defendant company.” It is then alleged that the plaintiff transported the machine to the station of the defendant at Bismarck and asked for and received authority to test the engine by operating the speeder upon its tracks. Then follows this allegation: “That aforesaid three wheeled gasolene speeder was a dangerous and treacherous machine to operate and control when running upon a railroad track, in that said machine, on account of the nature of its construction, did not hold to the track, but in fact was extremely dangerous and treacherous in that its wheels did without warning jump off from the track rails, all of which said facts were known to the defendants and wholly unknown to this plaintiff, and of which facts the defendant negligently, carelessly and wantonly failed and neglected to impart to or give notice of to the plaintiff when authority to operate said speeder upon the tracks of the defendant was given by it to the plaintiff, or any other time.” It is then alleged that the plaintiff placed the machine upon the tracks of the defendant and operated the same for a short distance, whereupon the plaintiff turned to come back to Bismarck; that while the plaintiff and his employee were sitting upon said speeder, operating and running the same “in the usual manner upon the tracks of the defendant . . . the wheels of said speeder, without fault on the part of the plaintiff or his employee, did jump off the rails of said track, thereby causing the plaintiff to be thrown from his seat off of said speeder,” thereby causing the injuries complained of, which are thereafter described in detail in the complaint. It is then alleged that the injuries were caused without plaintiff’s fault and without the fault of his employee but because of “the failure and negligence of the defendant as aforesaid in negligently and carelessly failing ... to give notice to the plaintiff of the dangerous and treacherous nature of said speeder when operated upon a railroad track.” [601] It was virtually conceded by respondent upon the oral argument that the plaintiff was an independent contractor. The appellant contends that the respondent undertook to do' a specific job of repair work, furnishing his own assistants and doing such work entirely according to his own ideas or plans, without being subject to the orders of the appellant in any respect as to the details of the work and that, therefore, the appellant is not liable. It seems to 'be the general rule that such a person is not a servant, but an independent contractor. Louisville & N. R. Co. v. Newland, 176 Ky. 166, 195 S. W. 415; 26 Cyc. 970, 1084, 1553; 65 L.R.A. 641, note. The respondent, however,, contends that the appellant is liable, whether the relation between it ■and the plaintiff be considered that of an independent contractor, bailee, an employer and employee in the restricted sense, or master and servant. The theory of the respondent is, as we get it from the complaint and from his brief and the argument, that the speeder was a dangerous instrumentality, that it possessed characteristics which became dangerous to persons without knowledge or notice thereof, when the machine was operated upon the railroad tracks, and that the defendant owed a duty to the plaintiff to notify him of these dangerous characteristics; that having failed to do so, the defendant was guilfy of negligence, which was the proximate cause of the injuries received. The trial court held that the plaintiff was an independent contractor, but held that the complaint stated a cause of action notwithstanding upon the ground that the machine ivas dangerous to operate on account of the nature of its construction and that the appellant, although he knew this, failed to notify or warn the respondent thereof. Plaintiff was not employed to repair the tricycle, but to overhaul the engine. The work of overhauling the engine was apparently completed. The engine was separable from the speeder. If the injury resulted proximately and solely from the negligent manner in which the repair work was done, or from an act which was a necessary incident of the work, the defendant would not be liable. Note in 65 L.R.A. 641. There is nothing in the complaint from which we are justified in drawing this inference, as a matter of law. It is true, the complaint says that plaintiff “determined and found that it would be advisable to try out and test the said engine by operating the said speeder upon the railway tracks,” but it is not alleged that it was essential to a proper repair job that the tricycle be in fact operated on the tracks. We think [602] the allegations of tbe complaint, fairly construed, show that tbe dangerous characteristic, to wit, a tendency to jump the track, was due to the construction of the tricycle, entirely apart from the engine with which it was equipped and which plaintiff had fully repaired when the injury occurred. The complaint alleges, in effect, that the three wheeled apparatus in which the engine repaired by the plaintiff was placed, was constructed on such a faulty plan or design that when operated on the railroad tracks, with the engine placed where the plan of the instrumentality required it to be, it would not remain thereon when operated in the usual manner, hut had a tendency to jump therefrom without warning. It should also he noted that the tricycle was an instrumentality in-use only upon railroad tracks; it was not in common use with the qualities and characteristics of which, dangerous or otherwise, the general public would be presumed to be more or less familiar. It cannot be classed with automobiles or other vehicles in general use. Whatever dangerous characteristics this appliance may have possessed would necessarily he known only to the defendant or persons who had had actual contact or experience with it. As we view this case, it is not material whether the plaintiff be considered an independent contractor, bailee, or otherwise. The decision of the trial court must he sustained, if at all, because the complaint alleges that the instrumentality was dangerous, that its dangerous characteristics were known to the appellant, or, in the exercise of ordinary care, would have been known to it, that they were not known to tho respondent and that the appellant, when it authorized the respondent to use the machine upon its tracks, failed to notify the respondent of such dangerous characteristics. Tn this, as in other cases of negligence, there lies at the threshold of the investigation the inquiry: What, duty which appellant owed the respondent did it fail to discharge ? The cause of action alleged in the complaint is founded upon negligence. The plaintiff must show that the defendant owed him a legal duty which it failed to perform and that, as the proximate result of such failure, he suffered the injury described in the complaint. There is no allegation in the complaint that there was any specific defect in the machine; it is not claimed that any part of it was worn, broken, or in any respect defective; the [603] conlention is simply that the entire machine, though all its parts were sound and in functioning condition, was, nevertheless, a dangerous instrumentality when operated upon railroad tracks. We think it is a sound rule of law, as well as good sense, that he who puts a thing in charge of another, which he knows to be dangerous or to be possessed of characteristics, which, in the ordinary course of events, are likely to produce injury, owes a duty to such person to give reasonable warning or notice of such danger. See Shearm. & Redf. Neg. § 690. What legal duty, if any, did the defendant owe the plaintiff, under the circumstances ? Plaintiff says that the instrumentality turned over to him for use upon defendant’s tracks was dangerous, by reason of its construction in this, that it was liable, to leave the track without warning, throwing the operator off, and thereby injuring him. He claims, in substance, that while the tricycle was in no specific particular defective, so as to distinguish it from others of its kind, it and the entire class to which it belonged, was dangerous by reason of its construction, when operated on railroad tracks and that plaintiff did not, but defendant did, know this fact. Can we say, as a matter of law, that the defendant, in failing to give plaintiff warning of this fact, used that, degree of care which an ordinarily prudent person, in the same situation, would have used? We do not think so. Would an ordinary person, a reasonable man, foresee probable harm to plaintiff from failure to notify him of the dangerous characteristics of the speeder? We think that, upon the face of the complaint, this question must be answered in the affirmative. It is alleged that the speeder possessed the dangerous characteristic of jumping the track without warning; if that bo a fact, as we must assume it to be, it was the duty of the defendant to apprise plaintiff thereof when license was given him to operate it upon the railroad tracks. We think a prudent person, in the position of the defendant, possessing knowledge of the dangerous characteristic of this instrumentality, would have foreseen the probability of harm unless plaintiff were advised of the danger. It is alleged, as an ultimate fact, that the railroad tricycle was an instrumentality dangerous within itself; that the danger claimed did not arise from its misuse. It was being operated, the complaint says, “in the usual manner” and without negligence; that, notwithstanding, and because of inherently dangerous qualities and characteristics, the604 tricycle jumped the track and the operator was injured. Had there existed an actual defect in the tricycle, due, not to the character of its construction, but to the fact that a part of the mechanism was broken or out of repair, and had an injury resulted because of such defect, there seems to be no question that defendant would have been liable, had it known of the defect and failed to notify plaintiff thereof. Shearm. & Redf. Neg. 690. Here, however, the allegation, in effect, is that the specific tricycle, as well as all others of its class, is an inherently dangerous instrumentality, by reason of its construction, and possesses dangerous characteristics with a resulting tendency to jump from the track when operated “in the usual manner.” We do not think we are justified in saying, as a matter of law, that this tricycle, notwithstanding the allegations of the complaint, was not a dangerous instrumentality, or that the tricycle was not dangerous in itself or liable to cause injury to the operator when operated in the customary manner and for the purpose for which it was designed. See Barmore v. Vicksburg, S. & P. R. Co. 85 Miss. 426, 70 L.R.A. 627, 38 So. 215, 3 Ann. Cas. 594, where, in an action by one injured in a collision with a railroad tricycle upon defendant’s tracks, it was held to be a question for the jury whether the tricycle was a dangerous instrumentality within the rule that a master who intrusts the custody and control of a dangerous appliance to a servant cannot avoid responsibility for injuries inflicted by it upon the ground that the servant, in the specific act under consideration, was acting outside the scope of his employment. See also King v. National Oil Co. 81 Mo. App. 155. Applying the elementary tests of negligence, we believe the complaint states a cause of action. . Order affirmed, with leave to answer within thirty days from filing of remittitur. Bronson, Oh. J., and Birdzell, J., and Buttz, Hist. J., concur. Mr. Justice Nuessle, disqualified, did not participate, Honorable O. W. Buttz, Judge of Second Judicial District, sitting in his stead.