Seewald v. Harding Lumber Co.
Seewald v. Harding Lumber Co.
Opinion of the Court
This is an action to recover damages for personal injuries received by plaintiff while in the employ of the defendant. The cause came on for trial before a jury, and at the close of the plaintiff’s testimony a nonsuit was granted and the action dismissed. The plaintiff has appealed.
There was evidence to the following effect, and for the purposes of this appeal it must be taken as true: The respond
Just before the injury to appellant, the engine was stopped for the purpose of readjusting the cable and choker so as to
Incompetence of the donkey engineer and negligence of respondent in employing him constituted the ground of negligence alleged in the complaint. There was ample evidence to go to the jury as to the incompetence of the engineer, but it is contended that there was not sufficient testimony to show any negligence of respondent in the employment of the engineer and in his continuance at that post. We think, under the testimony, that question should have been submitted to the jury. It was respondent’s duty to make reasonable effort to leam the qualifications of the engineer, having regard to
“It is such care as, in view of the consequences that may result from negligence on the part of employees, is fairly commensurate with the perils or dangers likely to be encountered.”
Tested by such rule, it was for the jury to say, under the evidence in this case, whether respondent exercised the degree of care required.
Respondent contends that appellant assumed the risk of danger from incompetence of the engineer, for the reason that he saw the latter’s manner of operating and knew therefrom that he was incompetent. It must be remembered that the engineer had worked there but a few hours, and appellant had never known him before. Appellant’s duties in the main called him to a place where he could not carefully observe the manner of the engineer, and under such circumstances it cannot be said, as a matter of law, that he had such knowledge of the incompetency as placed upon him the burden of assuming the risk of the danger from such a situation.
Under the evidence the question of contributory negligence . was also for the jury. We therefore think the court erred in granting the nonsuit, and the judgment is reversed, and the cause remanded with instructions to grant a new trial.
Mount, Dunbar, and Fullerton, JJ., concur.
Reference
- Full Case Name
- Chris Seewald v. Harding Lumber Company
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- 7 cases
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- Syllabus
- Master and Servant — Negligence—Employment oe Incompetent Co-servant — Evidence—Question for Jury. The question of the negligence of a master in employing an incompetent engineer to run a donkey engine, used in hauling logs by a cable, is for the jury, where it appears that the engineer was a young man, about nineteen years of age, sent out by an employment office the evening before, that he was nervous and excited in attempting to operate the engine, and caused injury to the hook tender by starting the engine at full speed when directed to start it slowly; it being the master’s duty to make a reasonable effort to learn his qualifications. Same — Assumption of Risks — Incompetent Fellow Servant. A hook tender does not, as a matter of law, assume the risk from the incompetency of the engineer of a donkey engine, where the engineer had worked but a few hours and was not known to the hook tender, whose duties in the main called him to a place where he could not carefully observe the engineer’s manner of work.