How things have changed

[templelady]

The following is an actual case heard by the Idaho Supreme Court in 1901. Compare the law then to the law now. Oh BTW the plaintiff Charles ZIENKE is my Great great grandfather on my birth mothers side. So how say my fellow Grease-spotter's how would my ancestor fair today with the same circumstances?? {italics mine}

The Supreme court Yesterday handed down a decision in the case of Charles ZIENKE, respondent vs. Northern Pacific Railroad Company appellant. Opinion by Justice STOCKSLAGER. The case was appealed from Kootenai {Bonner} county. ZIENKE, who was a carpenter in the employ of the railroad company, was injured while so employed and in the lower court was awarded $1995. the Supreme court reversed this decision and sends the case back for re-trial on the ground that the injuries were received through the carelessness of a fellow servant, and the law therefore holds the employer not responsible in damages.

The facts as stated in the opinion show that the complaint alleges that the plaintiff is a carpenter and was employed in July 1896, by the defendant at work upon the trestles across Lake Pend'Orielle that said trestles are narrow and crossed by a single track and that plaintiff was run over by a hand car which one John HOLSTROEM, foreman of the work and and employee of the company, was managing, and that plaintiff could in no manner avoid the accident. That the plaintiffs right leg was permanently injured by the accident.

Then follow allegations that the defendant should have furnished a safe place for working and a timely system for warning of danger, that defendant was negligent and careless, that it was defendants duty to employ only careful and sober men and that the said John HOLSTROEM was addicted to drunkenness and unfit for the position of foreman, that plaintiff was, at that time, ignorant of HOLSTROEM's unfitness; that plaintiff at the time of injury was a strong healthy man and since has been incapacitated from work and injury was caused without any negligence on plaintiff's part.

To the complaint a demurer was file, which was overruled and an answer made, denying all the principal allegations of the complaint.

The court then reviews the evidence at length and sums up as follows:

With this statement of the pleadings, and the evidence, should the motion for a non-suit have been sustained? If so it is wholly unnecessary for us to pass on a number of questions presented by the record.

The plaintiff testifies that he was an experienced bridge man having been engaged in that class of work for a number of years, that he was familiar with the dangers connected with the class of work in which he was engaged at the time of the accident. He testifies that the accident was attributable to the carelessness and negligence of one John HOLSTROEM in pushing a hand car against his leg with such force as to cause the injury, and that said HOLSTROEM was an employee of the defendant in a capacity superior to him. On cross examination he testifies, that one McAULIFFE was the foreman of the gang at work on the bridge, or trestle, at the time of the accident, and was present at the time giving orders, that said McAULIFFE employed him to work for defendant in the capacity of a bridge carpenter, that he was assisting in unloading the push car when said HOLSTROEM pushed the hand car against his leg with sufficient force to cause the injury, that HOLSTROEM was also a bridge carpenter.

Three witnesses testified that HOLSTROEM was addicted to the use of intoxicating liquors, and that they had frequently seen him intoxicated at Sand Point {Sandpoint} Spokane, and Rathdrum. There is no pretense, however, that he was under the influence of liquor at the time of the accident or that his habits of intoxication were in any way responsible for it, or that he was in the habit of using intoxicating liquors whilst at work.

It is urged by respondent's counsel that it was the duty of the defendant to only employ such workman as were reliable and safe in the work in which they were engaged. This is undoubtedly true, but no one testifies that they ever knew HOLSTROEM to be under the influence of liquor when engaged in work for the defendant. It is also urged by counsel for the respondent that HOLSTROEM and ZIENKE, the plaintiff, were not fellow servants, and hence the rule applying to fellow servants cannot be invoked in this case. We cannot agree with this contention. We think the testimony of plaintiff plainly shows that they were fellow servants each employed in the capacity of bridge carpenters by Foreman McAULIFFE.

Plaintiff testified that HOLSTROEM stated to him at the time of the accident, that the brake on the hand car was defective. A careful inspection of plaintiff's amended complaint fails to disclose any allegation of defective machinery or defective brake on the hand car. Plaintiff basing his right to recover on the carelessness and negligence of HOLSTROEM whom he alleges was incompetent careless and negligent in handling the handcar, and the discharge of his duties in same capacity over him in the employ of the defendant.

The first question is: Was HOLSTROEM a fellow servant with plaintiff or did he occupy a position in any way superior to the plaintiff? We think the evidence is conclusive that they were fellow servants employed as bridge carpenters by the defendant, and we need not look beyond the testimony of the plaintiff to arrive at that conclusion. If they were fellow servants can the plaintiff recover in this action? In DONNALLY vs San Francisco Bridge Co., the court says: That the superintendent and the injured workman as to the act causing the injury were fellow servants, sery.49 Pac. page 559

In BRUNELL vs Southern Pacific R.R. Co, the Supreme court of Oregon a well considered opinion, by Mr. Justice MOORE, says (syllabus) A railroad company is not bound to keep a signal to warn the men on a hand car of the situation of the section men on the track 56 PAc. page 129.

That the plaintiff assumed all ordinary risks incident to the work in which he was engaged we think there can be no serious question. See DRAKE vs N.P.R.R. Co. Idaho 453. The Syllabus says: Where a fireman upon a locomotive engine in discharge of his duty with full knowledge of the service he is engaged in, or having the means to be informed by such facts or conditions by the exercise of ordinary care, voluntarily assumes such risks and is thereby injured, and the employer is guilty of no lapses or misconduct unknown to the servant, or which with ordinary care he might have known, he cannot recover for such injury.

The learned judge in whose court the case was tried below recognized this rule in his instructions, but they seem to have been entirely ignored by the jury. On this question see:

MINTY vs C.P.R.R. 21 Idaho, 437. (21 PAc 660)

BRUNELL vs P.R.R.Co (Ore) 56 PAc 129

The defendant assigns 44 errors occurring on the trial of this cause, but in our view of the case, we deem it unnecessary to pass upon a large number of them.

With the pleadings as we find them, the testimony as it appears from the record and the law as shown by the authorities above cited, can this judgement stand? We think not. The judgement of the lower court and the order denying defendant a new trial are reversed with costs to the appellant.

QUARLES, C.J. and SULLIVAN, J. concur

Idaho Daily Statesman (Boise, Idaho) 23 November 1901

(found at www.ancestry.com)

The final part about by GG Grandfather having to pay the court costs was, IMO, the icing on the cake

[topoftheworld]

Well, nowadays the guy driving the rail hand cart would be subject to DOT regs, and would have been subjected to a pee test, which would have settled that issue.

In my experience, any work related accident is covered by workman's comp, which is why companies pay into the state system and are fined heavily and subject to closure if they don't.

Certain industries are covered under other various regulatory boards, like MSHA, in determing liabilities.

In a recent incident, a warehouse driver dropped a full pallet of nails down from a third shelf. We believed he was negligent, because of his past experiences, but we could "prove" it. Two other workers were assigned to clean up the mess. They used a forklift to push a small hopper in front of the pile, and proceeded to shovel nails in it. They did not realize that the hopper had a safety chain on the back to prevent it from tipping forward, which, of course, is what it did. It landed on one of the workers feet. After months of pain and lost work, he finally lost two of his toes.

So, who's liable? The careless forklift operator who caused the pallet to fall? The workers for not fastening the safety chain? The foreman who didn't make sure that the workers knew about the saety chain? The company for not making sure the foreman made sure his people where properly trained? The vendor who sold us product on defective pallets?

The whole thing went to Workers Comp, and the employee was paid whatever the max was that was allowed.