WINSTON and others.
«(Jirouit Oowrt, n.Hinneaota. June Term, 1887.)
1. MASTERANDSERVANT-LU.DILITY OF MASTER-SERVANT'S. KNOWLEDGE OF
DANGER-;-ORDERS OF FOREMAN.
Plaintiff, one' of a of workmen employed by contractors. while exca· vatinga tunnel,was mjured by an earth slide produced by a crack in the soil from blasting, and sued his employers for damages. Held, denying his mo· tion for a new trial, that,as thedanger was apparent to plaintiff personally, he conld not recover, though the foreman of the gang, also knowing the danger, ordered plaintiff to work, without notifying him thereof.
SAME-FELLOW,SERVA1ilT-FOREMAN OF GANG.
The foreman of a gang of laborers, employed by a contractor, is a fellow· servant of one of the gang.
At Law. Henry Johrui and H. S. Williams, for plaintiff. Kitchel, Cohen & Shaw; for defendants.
J. In this casa·a motionfo'r a new trial is made by plaintiff. Defendanls were contractors excavating a tunnel through a hill in the northern part of the city of St. Paul, in this district. It waS a face cut. One side of the hill was a little higher than the other,where the excavationwas made. It appeared.from the testimony that the contractor worked night and day gangs. The plaintiff was an employe in the night gang, under a foreman, and brings this suit to recover damages from a personal injury SUffered, .as charged from the negligence of the defendants. This cut was through a hill which was about 30 feet in height. It waslworked by having a platform raised some 15 feet, so that the men could work upon the platform, and also under it, in making the excavation. ,The sides of the cut were sloped, and the evidence shows the usual slope was given to them. In this face cut, when the day gang weht off, the night gang came on, and it was while the night gang were at work that the injury occurred. Blasts had been made on account of the character of the soil. 'A crack was formed, shortly after a blast, in the. afternoon of the day before. the accident, and some time during the morning there was a. slide of earth, llnd plaintiff was injured. It is claimed that the foreman of the gang saw the crack, llnd did not inform the men of the fact that it was a dangerous place, and plaintiff was ordered to go to work there. The 'evidence oiall the parties, with the exception oione who testified in regard to the character of the excavation, goes :directly to the point that the; foreman saw the (Jrack, and that they also sBwit. Anderson testifies; 'thllthe did Dot see it, it is obvious any that, .if there was any danger,it Wll$ as apparent olleelse. There is another reason why the phtintiff cannot recover in this case, and that is, the foreman,' if he was at fault, was a co-servant with Anderson. An effort is made by the plaintiff to bring this case within the decision of the United States supreme court in Railway Co.
v. Rosa, 112 U. S. 377, 5 Sup. Ct. Rep. 184. sented. The motion for a new trial is denied.
No such case is pre-
CHURCH, Adm'r, etc., v. NORTHERN PAC. R. Co.
(Oircuit Oourt, D. Minnesota. June Term, 1887.)
NJ:GLIGENCE..:.-DEATH AT RAILROAD CROSSING-EvIDENCE TO RENDER RAII,ROAD LIABLE;
In an action against a railroad company to da,mages for causing the death' of plaintiff's intestate, who was picked up on a crossing on a dark nigh1: in November,baving baen struck apparently by defendant's train, wbich had passed a few minutes before, the principal witness for plaintiff testified to hving near tbe crossing; that, from bis bouse, having retIred for tbe nigbt, be heard a scream '.IS the train passed, and the jumping of the whl:'elson the rails; that be heard no beH or other signo.l;.that he went down, and. plaintiff's intestate on the track, having received injuries from which he afterwards died, and saw the train disappearing, with cars ahead of and behind the locomotive. There was no at the crossing. There was evIdence that the deceased had been drinkmg intoxicating liquors. Held, that thete was not sufficient evidence to justify a verdict for plaintiff; and that, after verdict for defendant, a motion for a new trial should not be granted.' . .
At Law. Action to recover damages for death of the plaintiff's intestate through injuries caused by the defendant's negligence. On motion for new trial. C. F. Baxter, for plaintiff. N.O. Clough, for defendant. NELSON,J. This case was tried at the last term ohbis court, a verdict found for the defendant, and a motion for a new trial is made by the plaintiff. The administrator of Soren England brought suit to reCOver for the death of his intestate. The latter was found lying alongside of the-track of the Northern Pacific Railroad Company on the night of November 27,1885, in the city of Minneapolis, at a crossing on Twenty-first avenue nort\.I, and died soon after being removed to the hospital. Bruises and fractures upon his person and blood upon the rails indicated that he had been struck and run over by defendant's train. The night was dark. There were two tracks at this point, and the body was found near the west track. There is no testimony offered of any person who saw the injury inflicted. The accident occurred about 10 o'clock at night. The principal witIless, who lived near the track on the north-west comer of Twenty-first avenue north, testified that he was in his room in the second story of his house, and heard the train passing, and says he heard th., scream of a man, and the wheels jumping on the rails; and, believinb that s0Ir\e one was hurt, got up and arrived within five minutes of the time that this accident happened, and found this man in a position v.31F.no.9-34