160 N.W. 843 | S.D. | 1916
Action for damages resulting* from personal injuries. Appeal is from a judgment for plaintiff. Appellant assigns error upon an order of the trial- court overruling* defendant’s motion for a 'directed! verdict made at the -close of plaintiff’s evidence, and renewed ¡at the close of all -the evidence, and also, assigns as error insufficiency of the evidence to sustain the verdict. Plaintiff was employed as a laborer by the defendant cor-
Plaintiff and one Holm, who was working" with him, had just moved -the loaded' tram-car -out over the open gondola car, and were in the act o-f -clumping its load towardl the east. A board extended along the west side of the tram on w-hi-ch Holm stood. Plain-tiff went lover to- the northeast corner of the tram to let down -the supporting standard there, while Ho-lm let down •the standard at the southeast corner. Just then the tra-m-r-ail broke near where plain-tiff was standing with one foot on some ■boards laid between- the rails, and t’he other on -the tram-rail or
“Instrumentalities intended for a particular purpose,’ and suitable * * * for that purpose, do 'not break when pu,t to the use for which they are designed when used in the proper manner. So the 'converse of this proportion must he true. If the instrumentality does 'break when put to the use for which it is designed and used in a proper manner, it is evident that it was either defective in material or construction in the first instance, or has become so since it was put to use. Therefore, when the servant shows that the master furnished him an instrumentality to- ¡be used for a particular purpose, that he used it for tíie purpose intended in the manner intended, and that it broke when- being so used and injured him, he makes .out a prima facie case of negligence against the master.”
The case of Penson v. Inland Empire Paper Co., 73 Wash. 338, 132 Pac. 39, L. R. A. 1915F, 15, is to the same effect. That court says:
“The respondent relied upon the doctrine of res ipsa loquitur as establishing1 the appellant’s' default. * * * A circumstance necessary to' its application! -is that the injured party,’ from the nature of the case, is not in a position to explain the cause, while the party charged is in a position where he is, or if he has exercised reasonable care should he, able to explain and show himself -free -from! negligence, if in fact he was so. * * * 'The doctrine does not dispense with the rule that the party who alleges negligence must prove it. It merely determines the moda of proving it, or what shall he prima fade evidence of negligence. * * * So defined, we think the rule clearly applies to -the facts before us. The actual Occasion of the accident was not a subject of speculation. The staging was being used1 as intended. The 2x4 support broke. The breaking itself demonstrated to a certainty that it was inadequate, either by reason of an open or a latent defect.”
To the same effeot are the decisions of our own court. Perrault v. Wisconsin G. Co., 32 S. D. 275, 144 N. W. 110; Iverson v. Look, 32 S. D. 321, 143 N. W. 332.
Appellant by its answer -denles- plaintiff’s allegation' of negligence, and affirmatively alleges that plaintiff had full knowledge of the -condition o-f the track, and- voluntarily continued to operate the tramcar thereon, -and voluntarily assumed any and- all risks -of said employment. At the -close -of all the evidence, there was a conflict in the -evidence as to plaintiff’s knowledge that the tram-rail which broke was defective -or o-f insufficient strength. It must be home in mind that this appeal is from an order overruling defendant’s motion for a directed verdict.
“A day or two- before the accident the rail was changed. Andrew Sandiness, myself, -and this man that was working with me changed them. Mr. Sandness was the bos-s, and he was there. They looked' to he old- rails. The rail that was put in ■there Mr. Sandness got up- by the engine room1. That was the rail that broke and let the load down on me. I did not know this rail was apt to break and let the load down on me. I did not think it would break; no- one had told me the rail was apt to break and cripple me for life.”
It is clear that the rail spoken of in the conversation testified to b}r Mr. Holm referred to the rail in use before this change. There -is no evidence in the record tending -to show that plaintiff had knowledge of any defects in the rail which broke.
One Randall, a witness for the defendant, testified that he was plant foreman of the granite company; that during’ the time the tramear was in operation, about the third day the car was used, he caused a tie 6x6 to be sawed off the proper 'length to fit under the ¡tramear; that he talked with. 'Clinks'cales about this prop, and helped ¡put it under the track; that he told Clink-scales he thought it was necessary to keep this 6x6 under the track as a support; that he observed1 several times they were neglecting to use it; that he called their attention to' the fact as many as a dozen times,; that Olinkscales was there when this 6x6 was put under the track the first time; that the .purpose of this support was to make the track safe to hold «up. the rails; that this 6x6 was not under the track at the time the accident occurred.
One Krause, witness on behalf of defendant, testified that he was at the plant when this accident happened, ¡and 'had1 seen this prop in place; that it.was not safe to1 dump the tram without it.
One Londeen, a witness for defendant, testified that he had seen this -prop; that he was engineer ¡on the Illinois Central, and moved lout the gondola car which was being loaded at the time of the accident; and, in substance, that this prop was not in use at the time of the accident but was covered with sand in the other end of the gondola car.
One Hewson, superintendent of the company, testified that the 6x6 standard to- be placed under the track was provided within a. few days after the work started.
On the other ¡hand, the following testimony appears in the record, and is in direct conflict with this testimony of the defendant :
Oscar Holm, a witness for the plaintiff testified:
‘‘This brace was not used by ¡Olinkscales and I at the time the rails broke. Q. Rut you had been using it unloading this car? A. After the accident. We had not been using it on the car before the accident. We had not been using it on the car. Mr. Randall, the foreman had not said anything to us before the accident about using this 6x6 under the track. I do' not know*216 where this 6x6 was- at the time of the accident. It was not in the railroad -car a little further up.”
Plaintiff himself testified1:
“I heard- the testimony of Randall that he tokl. me to put -a post under the -railroad track. He never told- me at any time to ■put a post under the track. Mr. Randall did not tell me. He never told me about putting* a brace under the track at any time. There was no 6x6 standard- there to- brace under the track where we were -dumping. I never saw or -heard of one. This is the first time I ever heard of it.”
Defendant's witness Higgins testified:
“I did- not specifically instruct -it (the 6x6) to he place there. Q. Wiill you kindly explain to the jury why you did not tell Mr. Clinkscales when he told- 3r,o-u the rails were -bending, to use the 6x6 standard y-o-u 'had provided- far it? A. They did not provide that standard- for some -days -afterwards. Q. Then you did not get it there the first day or so, as Mr. Randall testified? A. I do not remember just exactly when, but it was- within a few days.”
This testimony -is quoted to show -that there was -a direct conflict in the evidence of plaintiff’s and- -defendant’s witnesses, as to the facts- upon which defendant seeks to -charge plaintiff with contributory negligence. Upon this appeal from the order denying defendant’s -motion for a -directed verdict, the -conflict in this evidence m-ust be resolved in favor of plaintiff.
It follows that the trial court did not err in overruling defendant’s -motion for a directed verdict. The order and judgment of the -trial cou-rt must be affirmed.