225 N.W. 223 | S.D. | 1929
This is an action to recover for personal injuries claimed to have been received 'by plaintiff as a result of defendant’s negligence. The case was tried to a jury, and the jury returned a verdict for plaintiff in the sum of $500. Defendant appeals from the judgment entered thereon and an order overruling his motion for a new trial.
Respondent was working on a farm for appellant. As a part of his duties he hauled straw to appellant’s cattle across the James river. In doing so he used a road running from the farm buildings above the river down the bank of the river to a ford. The road down the bank was cut out so as to run diagonally along and down the bank, so that in going from the 'buildings to the river the bank was to the right and the fill to the left. He used a wagon and hayrack drawn by horses. The wagon is described as a manure spreader wagon; that is, the running gear had formerly been the running gear of a manure spreader. It differed from the ordinary
There are but two questions discussed in appellant’s brief: First, appellant says if there was an injury it was the result of respondent’s failure to exercise due care; that respondent was guilty of contributory negligence in that the chain as attached to the front axle of the wagon was plainly visible and if he had looked he could have seen how it was applied; that it was his duty to look and that he assumed the risk of using the wagon in that condition as one of the hazards incident to his employment. Second, that the evidence is insufficient to sustain or justify the
The first question involves the sufficiency of the evidence to support the verdict. The evidence is conflicting and therefore was a matter for the determination of the jury. It is undisputed, however, that respondent did not see or notice the change in the manner of fastening the chain. As to whether or not he knew without looking is in dispute, appellant contending that he told respondent, and respondent and his family denying that fact. The question therefore narrows itself to the one point whether or not it was the duty of respondent to^ look and know without having-been told. It seems to be the theory of appellant that in the exercise of ordinary care it was his duty to examine the chain and the manner in which it was fastened immediately before using it, and if he had- done so and had found the chain hitched to the axle, then he would have assumed the risk incident to using it in that manner. As to the duty to see, appellant cites 39 C. J. 503, in which it is said:
“A master is not bound to warn and instruct his servant as to' dangers which are patent and obvious, a danger being generally considered as within the rule where it is open and obvious to the senses of any man of ordinary intelligence, or where it is as easily discernible by the employee as by the master, or where it is discoverable in the exercise of that reasonable .care which persons of ordinary intellig-enee maybe expected to take for their own safety.”
Appellant also cites the same volume oí C. J. at page 498, § 610, to the effect that a master is not required to warn a servant regarding dangers arising- from a change of conditions where the ver)'" nature of the servant’s employment requires him: to look out for dangers likely to arise from changing conditions. He cites 20 R. C. L. 193, § 99, and Conkey Co. v. Larsen, 173 Ind. 583, 91 N. E. 163, 29 L. R. A. (N. S.) 116-118, but he frankly concedes that among all of the cases that may be found in the books applying the rules announced in Corpus Juris and Ruling-Case Law he has not been able to find a state of facts similar to the case at bar. The rules there announced have no application to the facts existing in this case. There were no changing conditions. If respondent’s testimony is true, and in view of the verdict we
Second, are the physical facts such as to- conclusively show that the accident was not the proximate result of appellant’s negligence, and that the accident could not have happened from the cause ascribed by respondent. In discussing this proposition appellant seeks to demonstrate the physical impossibility by assuming that the chain was fastened around the front axle as appellant says it was, and that it co-uld not have slipped out to the end of the axle near the wheel because the chain was fastened between the center bolt and the bolts holding the tongue. But it must not be assumed that it was so- fastened. The evidence is conflicting. If it was fastened as appellant says, it was not where respondent says it was after the accident, but if it was where respondent says it was after the accident, appellant did not fasten it as he says he did. That is demonstrated by the pl^si-cal facts; but who is telling the truth is for the jury to say. There are no conclusively proven facts of the physical condition from which this court can say that the accident could not have happened from the causes claimed by respondent.
The judgment and order appealed from- are affirmed.