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JOHNSON v. OAKES et al.

(Circuit Court, D. Minnesota, Fifth Division.

November 19, 1895.)

Master and Servant — Risks oe Employment — Falling Icicles.

A. railroad employé injured by the falling of a large icicle from the eaves of a locomotive roundhouse cannot recover therefor where it ap- . pears that he had been'working there for some time, taking engines in and out, and consequently had equal means with defendant for observing the icicles and knowing the danger therefrom.

This was a petition of intervention filed by Charley Johnson against Thomas F. Oakes and others, receivers of the [Northern Pacific Railroad Company, to recover damages for personal injuries, received while in their employment.

John Jenswold, Jr., for plaintiff.

L. T. Chamberlain, J. C. Bullitt, and J. L. Washburn, for defendants.

[NELSON, District Judge.

Upon motion of defendants this suit was referred to a master in chancery to hear and report findings of fact and conclusions of law, whereupon the master reported that on January 3, 1894, ánd for some time prior thereto, plaintiff was working for defendants about their roundhouse and yard at Duluth, Minn., cleaning and taking out engines, and doing such other work as he was ordered to do;' that on the night of said day plaintiff was working under the eaves of the roundhouse, and, while so engaged, was struck by a large and heavy icicle which had been for some time suspended from the eaves, and of its own weight fell down; that defendants knew that such icicles had prior to January 3, 1894,. fallen from said eaves, but carelessly and negligently omitted to have them removed; that plaintiff was ignorant of any danger or risk to be incurred where he was working, and no warning was given him thereof; that plaintiff was injured solely by the negligence of defendants, and-was entitled to $700 therefor as damages. To this report of the master, defendants filed exceptions, and plaintiff moves its confirmation by the court.

Upon due consideration of the arguments of counsel and the testimony, I am of opinion that the master erred in finding that the plaintiff’s injuries were caused solely by the negligence of said defendants, and that' said defendants are liable therefor. The plaintiff had equal means with the defendants of knowing the danger from icicles falling from the roof of the roundhouse. It was as apparent to him as to them, and as well known. Plaintiff’s duties called him in and about the roundhouse. On the night of the injury he took locomotives into that building, and must have passed near and under the icicles many times before he was hurt; and, although he states in his testimony that he knew nothing about the condition of the eaves above him, other men who worked about the roundhouse knew that icicles formed on that building, and he must have known *567that changes in the weather would cause them to form, and that they were liable to fall at any time.

The motion to confirm the report of the master will he denied, and judgment will be entered for the defendants. Ordered accordingly.

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