Birmingham v. Duluth, Missabe & Northern Railway Co.

MITCHELL, J. This was an action to recover for personal injuries resulting from the 'alleged negligence of the defendant. The appeal is from an order overruling a demurrer to the complaint on the ground that it did not state a cause of action. The contention of the defendant is that it appears from the face of the complaint that the plaintiff’s injuries were caused either by his own negligence or by that of his fellow servant, one Cushing, the foreman and engineer; it being admitted by the plaintiff that the case does not fall within G. S. 1894, § 2701. Inasmuch as negligence is a mixed question of law and fact, and hence an allegation that a thing was negligently done or omitted one of fact, and not a mere conclusion of law, it is very rarely the case that a defendant can successfully demur to such a complaint, unless the pleader had purposely attempted to commit legal suicide. As was said in Rolseth v. Smith, 38 Minn. 14, 35 N. W. 565: “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.” The complaint in this case is so lengthy, by reason of statements [477] of matters of detail, that it must be left to speak for itself. And as it is impossible to say, in advance, what light the evidence will cast upon the situation, it might be misleading rather than helpful to enter into any extended analysis or discussion of the facts alleged. Upon the question of plaintiff’s, own conduct, all we deem it necessary to say is that it does not appear — not conclusively, at least — that he was guilty of contributory negligence, or that he knew, or in the exercise of reasonable care ought to have known, all the risks incident to the execution of the order of the foreman. Upon the facts alleged, that would be, at least, a question for the jury. The fact that contributory negligence need not be negatived in the complaint, but is purely a matter of defense, adds force to this view. Leaving out of view for the present any other charge of negligence against the defendant, it might, under the allegations of the complaint, be a question for the jury whether, under the circumstances, it was not the duty of the defendant to give the plaintiff warning of the risks incident to the performance of his duties. If it was, this was an absolute duty of the master, for the neglect of which he could not absolve himself by leaving the performance of it to .some one else. If such a duty rested on the defendant, the foreman, Cushing, who was the only person present who had charge of the work and of the men, was, as to the performance of that duty, the representative of the defendant and for his negligence, if any, in that regard, the defendant is responsible. The fact that the same person was both foreman and engineer, and 'that in the latter respect he was a mere fellow servant with the plaintiff, does not alter the case. Order affirmed.