Rolseth v. Smith

Mitchell, J. This action is brought to recover damages resulting from the alleged negligence of defendants, causing injuries to the plaintiff while in their employment in their saw-mill. The appeal is from an order sustaining a demurrer to the complaint, on the ground that it does not state a cause of action. The defendants’ contention is that the complaint is insufficient (1) because it does not allege anything that amounts to negligence on part of defendants; and (2) that it affirmatively appears that plaintiff himself was guilty of contributory negligence, or, at least, voluntarily assumed, as incident to his employment, all the risks of which he now complains. The complaint, although very ingeniously framed, is in some respects so conspicuous for what it omits to allege, as well as for what it does allege, as to be suggestive of possible difficulty in establishing a cause of action by the evidence; yet we are of opinion that upon its face it is good. The question of negligence is one of mingled law and fact; and hence an allegation of negligence or carelessness, as applied to [17] the conduct of a parly, is not a mere conclusion of law, but a statement of an ultimate fact allowed to be pleaded. Clark v. Chicago, Mil. & St. Paul Ry. Co., 28 Minn. 69, (9 N. W. Rep. 75.) The complaint in this case states various things which it alleges the defendants negligently and carelessly did, or omitted to do, and which caused the injury complained of. Under this allegation, the plaintiff might prove any facts or circumstances, not inconsistent with the particular facts alleged in the complaint, which would tend to prove this charge of negligence. Hence a court could not, as a matter of law, say that the complaint did not sufficiently allege negligence, unless the particular acts or omissions complained of are such that they could not be negligent under any possible state of facts or circumstances provable under the allegations of the complaint. When it is considered that the question whether a particular act is or is not negligent largely depends upon the surrounding circumstances, it would be impossible to say, in advance of the evidence, that the acts or omissions complained of in this case might not have been negligent. Perhaps a fair test of the sufficiency of the pleading in that regard is whether, under its allegations, evidence might be introduced sufficient to establish a cause of action. We are inclined to think that the learned court may not, in sustaining the demurrer, have given due weight to the allegation that these acts were negligent, or as to what facts or circumstances might be proved under it. As to the question of contributory negligence, it must be borne in mind that this is purely a matter of defence, which the plaintiff is not bound to negative in his complaint; also that, to constitute an assumption of risks by a servant, it is not necessarily enough that he knew, or ought to have known, the actual character and condition of the defective instrumentalities furnished for his use, but he must also have understood, or, by the exercise of ordinary observation, ought to have understood, the risks to which he is exposed by their use. Russell v. Minn. & St. Louis Ry. Co., 32 Minn. 230, (20 N. W. Rep. 147.) This must be determined from all the facts and circumstances of the case. Hence a court could not say, as a matter of law, from the allegations of a complaint, that the plaintiff was guilty of contributory negligence, or had voluntarily assumed all the risks which [18] concurred in causing his injury, unless these allegations so clearly show that fact that there could be no reasonable ground for different minds arriving at different conclusions upon the question, under any possible evidence admissible under the pleading. While we think it affirmatively appears from the complaint that this was not a case of a master directing a servant, under a pressing emergency, to engage in some extra-hazardous work outside of that which he had contracted to perform, but a voluntary change of work on part of the latter, yet we think the complaint does not affirmatively show any such conclusive state of facts as that supposed. We are therefore of opinion that the demurrer should have been overruled, and the defendants allowed to answer. Order reversed.