Grandpre v. Chicago, Milwaukee & St. Paul Ry. Co.

182 N.W. 527, 44 S.D. 95, 1921 S.D. LEXIS 48

• Court: South Dakota Supreme Court
• Decided: April 2, 1921
• Docket: File No. 4812
• Status: Published

Opinion

WHITING, J.

Plaintiff seeks to recover damages alleged to have been suffered by him from an injury resulting from defendant’s negligence. Defendant has appealed from an order of a trial court overruling a demurrer to the complaint.

The complaint sets forth: That defendant is a railroad corporation engaged in interstate commerce; that plaintiff was an employee of defendant for several months prior to the time of the alleged injury;, that it was his duty to run a power pump used in pumping water for engines; that on or about September 1, an idler pulley, used in connection with the belt running such pumping machine, became broken; that it became necessary to remove such idler pulley and also a belt-shifting device used in shifting the belt; that after the breaking of such idler and the removing of that and the shifting device plaintiff m'ade the fact of the breaking and removing of such parts known to defendant; that defendant promised and agreed that such shifter and idler would be replaced in due season; that defendant instructed plaintiff to continue .his work; that defendant negligently left said shifting appliance absent from said machinery and out of repair, and negligently failed to provide a proper shifting device; that defendant negligently furnished a defective belt, defective in'that its edges were worn and frayed; that because of the absence of such shifting device it became necessary to, and plaintiff was instructed by defendant to, shift the belt by the use of his hands and a bar provided by defendant; that the danger in so shifting the belt by means of such bar was not apparent and imminent, and plaintiff was unaware of and did not appreciate such danger; that plaintiff relied upon the promise made by defendant to replace such shifter and idler and continued in his employment; that on 'September 22, while attempting to shift the belt by the use of such bar, plaintiff, through the catching of the frayed edges of the belt upon the bar, was violently thrown and injured; and that such injury was caused by the defendant’s negligence in failing to provide a shifter for shifting the belt, in furnishing and using the defective belt, in failing to warn plaintiff of the danger from using the bar, and in failing to instruct plaintiff how to shift the belt' with such bar.

[1] The 'demurrer to the comlplaint was set forth in three separate paragraphs. In the first it was alleged that “the complaint fails to state facts sufficient to constitute a cause of action;” in the second “that it appears by the complaint that no danger of injury to the plaintiff by shifting the belt with the rod, as described, * * * was apprehended or anticipated, and hence the defendant was not negligent in requiring the plaintiff to so shift the belt”; in the third “that all danger of injury to plaintiff was obvious, open, and apparent, as well known and understood to the plaintiff as to the defendant, and that the plaintiff, with full knowledge of the conditions, continued in the service and voluntarily undertook to shift the belt by the use of the rod * * * and therefore assumed the risk of injury.” It is perfectly apparent that the second and third paragraphs are absolutely surplusage, unless they were added: for the purpose of limiting the first paragraph and pointing out the particulars wherein the facts alleged in the complaint were insufficient to constitute a cause of action. We must presume the trial court so construed the demurrer and only considered the points urged in the second and third paragraphs thereof.

[2] The complaint fails to allege whether or not defendant apprehended or anticipated that plaintiff would be exposed to danger through defendant’s requiring him to shift the belt in the manner he did shift it at the time of injury. Therefore the allegation in the demurrer that it appears that no such danger was apprehended or anticipated is without foundation, so far as it might refer to defendant. The question therefore is not before us as to what would be the legal effect of defendant’s failure to apprehend or anticipate such danger. If the fact of defendant’s failure to apprehend or anticipate such danger would be a defense, it is certainly a fact to be pleaded and proven.

[3] Under the facts as alleged, did plaintiff assume the risk incident to using the bar in shifting the belt? He alleges that such danger was not apparent, and that he was unaware of and did not appreciate such danger. Certainly there could be no assumption of risk unless the other allegations of the complaint show these allegations to 'be false, and so clearly established their falsity as to leave no question of fact for a jury. To .our minds these allegations as to the danger not being apparent, and as to plaintiff being unaware of and not appreciating such danger, are not overcome by the other allegations of the complaint. The most that could be claimed would be that it must have been perfectly apparent to any man of ordinary judgment that there would be danger in attempting to shift, with a rod held in his hands, a belt having frayed edges. But even if this were not a question upon which reasonable men might differ, yet certainly it could not-be claimed that it would be perfectly apparent that the rough or frayed edges would do more than merely jerk the rod out of one’s hand. It certainly is clear that, in order to pass up'on the apparent danger, the real condition of the belt, the velocity at which it ran, and the kind of rod used wbuld all have to be known; and even then it would be for a jury to consider the facts proven and determine whether or not such facts warranted a finding that plaintiff assumed the risk incident to the use of such rod.

The order appealed from is affirmed.