had to be stopped, and the tightener pushed into an upright position in order to loosen the belt; that the tightener was about twelve feet high, made of heavy timbers, and, in order to move it, it was necessary for at least two men to climb up on the timbers and studding of the north wall in order to get into position to get the proper purchase; that no ladder or handholds were provided for the men to help them in getting up and down in doing this work, and, if not expressly directed to take hold of particular timbers, girders, rafters, and studding, they were left to climb up as best they could. It is not material if the evidence was not sufficient to indicate that a custom had been established with reference to a particular way in which the men should get up and down. Under the pleadings, it was sufficient that the master knew, or by the exercise of ordinary care would have known, that the tightener would be manipulated in the manner stated. No other way was pointed out to the men, or shown upon the trial. While the 2x4 brace was not intended to be a part of the permanent structure of the building, and apparently was not put in for the purpose of furnishing the men an additional means of climbing up and down, yet it was in a position which made it a very convenient footrest or handle. It does not conclusively appear from the evidence that the brace was of such temporary character as to appear unsafe for the purpose of taking hold of or stepping upon in going up and down the wall. The foreman himself had, upon different occasions, stepped on the brace and used it as a means of assistance in getting up and down, and other employees had also used it for the same purpose, and it was a most natural thing on this occasion for Lee, who was uninstructed as to the nature of the brace and the character of its fastenings, and unfamiliar with the location, never having assisted in that work before, to step on it, or take hold of it in going up and down. We do not hesitate to state that under those circumstances it became a question of fact whether the master exercised ordinary care in failing to furnish suitable handholds or other means for the men to make the ascent and descent. The question was properly submitted to the jury, and in this respect the case is very similar to that of Samuelson v. Hennepin Paper Co., 101 Minn. 443, 112 N. W. 537. While the evidence does not precisely indicate how Lee came to fall, and it is possible that he may have slipped or lost his balance while standing on the timbers above, and displaced the brace by falling om it, yet it was for the jury to say, under all the evidence, whether or not he did not fall by reason of stepping upon or by taking hold of the brace in his descent. The men had finished their work, and were in the act of getting down. Lee's co-employee, Balke, was in the act of stepping upon the plank, and it does not appear that he was attracted by any disturbance or outcry from Lee prior to the time he saw him fall. If Lee had slipped and fallen on the brace, the disturbance would have been more likely to have attracted the attention of Balke. We do not consider the evidence to be of such uncertainty as to take the question into the realm of conjecture. The circumstances of this case were not such as to place upon the decedent, as a matter of law, the responsibility of using the brace. The question of assumption of risk was fairly left to the jury, to determine whether under the circumstances he had a right to assume that it was safe for the purpose. The question of contributory negligence was also for the jury. Appellant requested the court to charge the jury: The plaintiff cannot recover in this case, unless you find from a fair preponderance of the evidence that the defendant has been negligent in the way claimed by the plaintiff in his complaint. The court charged as follows: Now, the defendant owed the duty to the decedent to exercise ordinary care by furnishing safe tools and implements for his use, and having a proper place in which to prosecute his work, and a reasonably safe means of access to and from his work. If the defendant failed in any of these particulars, and by reason of such failure decedent was injured, then plaintiff would be entitled to recover, unless you should find that decedent's negligence or carelessness contributed in some way to his own injury. This excerpt must be read in connection with the entire charge. The material element of negligence charged in the complaint was that appellant failed to furnish a safe place in which to do the work; but, of course, such work did not call for the use of any tools or implements in the ordinary sense. Although the reference to tools and implements was unnecessary, it was not prejudicial. Appellant also requested the court to charge: If you find that the evidence does not show what caused Knute G. Lee to fall, but that the cause of his falling is a matter of guesswork, conjecture, or speculation, then your verdict must be for the defendant. This was refused; but the court did charge that, if the jury should find from the evidence that Lee's fall might reasonably be attributed to any other cause than the negligence alleged in the complaint, then the verdict must be for defendant. Appellant insists that by this instruction the jury were left to guess as to the cause of Lee's fall, even though they should find there was no evidence reasonably tending to show that he fell by some other manner than as charged in the complaint. This criticism might be warranted, if it included all the court had to say on the question; but, when the entire charge is considered, it is plain that the court fairly explained to the jury that they could not return a verdict for respondent, unless by a fair preponderance of the evidence they found that appellant was negligent in the manner charged in the complaint, and that such act of negligence was the proximate cause of the injury. Appellant also took exception to the charge of the court on the assumption of risk. By selecting certain portions of the charge the point may be made that certain statements of the court are incomplete; but, when considered in its entirety, it cannot be reasonably claimed that the court did not fairly present to the jury the true rule of law in that respect. The court at some length went over the different phases of the evidence and used the following language, which is criticised: But the decedent did not, when he entered the service of the defendant, assume the risks and dangers occasioned by the carelessness or negligence of the defendant; or, to restate the proposition, he did not assume the dangers or risks incident to the failure upon the part of the defendant to perform duties it owed to its employees. And if the decedent's injury in this * * case was the result of the ordinary risks and dangers of his This part of the charge is not, of itself, complete. In another connection the court said: If you find from the evidence that said Knute G. Lee did actually know the dangers and appreciate the risks to which he was exposed at the time of the accident, or that in the exercise of ordinary care or prudence and the use of his senses he should have known such dangers and appreciated the risk thereof, then your verdict must be for the defendant. And again: Said Knute G. Lee was himself required by the law to exercise such care for his personal safety at the time and place of the accident as a reasonably prudent and careful man would have exercised under the same circumstances. If he failed to do so, the plaintiff cannot recover. The complaint charged appellant with negligence in failing to provide a platform across the girders between the lower end of the tightener and the north wall, as well as negligence in failing to provide handholds and ladder in order to get up and down; and the court charged the jury that, "if the platform in question and the wall back of the belt tightener were the means used by the defendant to enable its employees to stand while making the repairs in question, then the defendant was bound to exercise reasonable care to have the said platform so floored or properly covered and guarded as not to be dangerous to persons required to pass upon or stand thereon." According to the evidence, there was no platform, but merely a plank laid across the cross-beams upon which the men stepped or stood. It is evident that the court meant that, if the space between the tightener and the north wall had been completely covered, then decedent would not have fallen. There was no dispute about the evidence, and the term "platform," used by the court, was not misleading under the circumstances. In our judgment, the proposition was sound. If appellant was negligent in the manner charged, and in maintaining an insecure brace three feet above the plank, then it was negligent in leaving the space between the floor and wall uncovered; for, had it been covered, in all probability Lee would not have been injured. We find no errors in the other assignments. Order affirmed. THOMAS F. FLOODY v. GREAT NORTHERN RAILWAY COMPANY and Another.1 July 19, 1907. Nos. 15,249 (182). Railway-Use of Union Depot. A railroad company is liable to its servants for the negligence of the employees of a union depot company, whose duty it is to operate the switches and direct the movement of the trains out of the depot yards. For the occasion, the servants of the depot company become the servants of the railroad company. Same. A switchman, who in the performance of his duty is required to ride on his engine while assisting in pulling a train out of the depot yards, is entitled to recover from his master, the railroad company, for injuries received by reason of the negligence of the depot company servants in operating a switch. New Trial. New trial granted upon the ground that certain instructions were misleading and for misconduct of a juror. Action in the district court for Ramsey county against the Great Northern Railway Company and the Chicago, St. Paul, Minneapolis 1 Reported in 112 N. W. 875, 1081. 102 M.-6 |