*1 Plaintiff KITTOCK, Kenneth

Respondent, M. Joseph

Herbert A. ANDERSON De Anderson Brothers, derson, d/b/a and Appellants. No. 8839.

Civ.

Supreme of North Dakota. Court 18, 1973.

Jan.

Knudson, opin- J., dissented and filed

ion.

STRUTZ, Chief Justice, reassignment. on laborer, plaintiff, The brings a farm damages action to personal recover juries suffered he and fell in alighting from the rear end grain of a he, truck which in the course of his em- ployment, swept charges out. He defendants with for failure to provide a ladder for and out grain defendants, truck. The hand, deny any negligence other part and assert the evidence law, plain- tiff, worker, mature, experienced farm injury assumed the risk of to himself in sweeping connection with his duties in truck; grain that, out the as a matter law, were, fact, if the defendants providing contributorily negligent, contributing, such proximate injury. cause of his de- The fendants further assert assumed the risk incident sweeping the truck fully appreciated box because he

The defendants moved for dismissal at plaintiff’s case, the close of the and for a directed verdict at the close of all the evi- dence. The motion for directed verdict was denied the trial court and the case submitted to the The re- judg- turned a verdict for the accordingly. ment was entered The de- thereupon moved for upon notwithstanding the verdict based grounds previously urged support of a motion for dismissal made at the close of case and a motion for di- rected verdict at of all the close the evidence. The motion for denied, notwithstanding the verdict was appeal and the defendants the order denying such motion. record discloses that Kaldor, Hillsboro, Chauncey T. employed by had been the defendants as

tiff respondent. a farm years worker for two and one-half Wattam, Peterson, Vogel, Vogel & and still was employed so at the time Fargo, trial; appellants. for defendants and that on the considering

sweeping out a a task which In these performed appeal, light on a number of occasions we view evidence in the he had that, previously; as he had done on other most favorable to Larson occasions, by stepping Meyer, got into the truck *3 tire, ledge Risovi, (N.D. Mikkelson then onto the around v. 141 N.W.2d 150 box, 1966); swinging him- bottom of the then Christensen v. Farmers Bank the State Richardton, edge (N.D.1968); self the of the box. To of 157 352 over N.W.2d Owens, truck, leg one 164 swing (N.D. of the he would Willard v. N.W.2d 910 out box, place 1969). top of the rear of the over the ledge bottom the around the

his foot on box, leg swing of the and then his other duty employer It is the of an jump to the top over of the box and employees reasonably the to furnish his with ground. machinery appliances. safe Linden- Folson, berg (N.D. v. 573 138 N.W.2d question, the in On occasion 1965). by claim is the No swing- in following procedure, the same but in this in case box, top after leg the of the ing his over one, any not a or that de hit ledge, first foot the placing the fect in the truck caused com the top footing his the of the truck lost plained happened of. The be accident ledge, ground, suf- and fell to the the descending cause the in fering injuries complained the of. truck, misstep the made a fell. only negligence complained of is the failure negligence, of contribu of the to furnish a ladder to the tory cause, negligence, proximate and as purpose getting for the of sumption ordinarily questions of risk and out of the do not believe truck. We jury only of for the fact to determine. It is negligence, that this was actionable under record is such that the reasonable circumstances of this the case. men can draw but one conclusion therefrom However, assume, though even we should that such become of law purpose argument, the it was of for the determination of the court. Gleson provide plaintiff not with Thompson, (N.D.1967); v. 154 N.W.2d 780 getting ladder for ease in into and out Nielsen, (N.D. v. 26 Willert 146 N.W.2d truck, we nevertheless would Fanning, 1966); v. 129 268 Vick N.W.2d compelled be to find in for the defendants M., Chicago, R. (N.D.1964); St. P. & P. evidence, this case. the the Under Liners, Fuel 122 Co. v. N.W.2d Johnston’s getting tiff assumed the risk of into and (N.D.1963); v. Farmers 140 Gravseth of the truck because he was Minot, Union Co. of 108 N.W.2d 785 Oil (N.D.1961). jury found that the State, Under law of this an em they defendants were ployer has employee to warn an of provide failed to a ladder for the use of dangers employment, incident to his of climbing into and out of employer which the knowledge has the truck box. employee which the knowledge. has no employer now must determine But an dangers We whether need not warn of evidence of defendants’ which are known employee and of to the or which plaintiff’s assumption fully appreciated by are obvious to risks employment employee. Temple volved is such that rea- Olson v. Kem Shrine, cient Mystic sonable men can draw different conclusions Arabic Order of 78 263, If therefrom. different conclusions can N.D. (1951); N.W.2d 99 Lund v. Knoff, be presented, 676, drawn from the evidence 85 N.W.2d 67 A.L.R.2d 1110 Olstad, verdict of the (N.D. 1957); must be Olstad affirmed. N.W. ERICKSTAD, and TEI- Cook, 145 PAULSON Haga v. 2d 795 GEN, JJ., concur. (N.D.1966).

KNUDSON, Judge (dissenting). The record discloses the facts in this case I dissent. Under mature, experienced farm prepared say not I am same that he used the worker. He admitted plaintiff’s injuries law that were procedure of into and of the defend- attributable to the failure as truck box on the of the accident ants to furnish a ladder as a means of previous that followed occa him getting into and out of the truck box. asked if he felt that sions. When as Neither do I that it can be said believe *4 replied: “I procedure dangerous, he was a matter of was law He further knew I had to be careful.” contributorily negligent nor assumed danger testified that he was aware of record, Upon I am of the risk. whole past experience; had foot opinion that evidence adduced nearly fallen. before and he had to form of fact sufficient Therefore, jury. the consideration of the required in this case were not to warn case, Under the circumstances this dangers of aware and him of which was question of whether defendants appre fully which were obvious to and furnish breached him, ciated and he assumed the risk. g., appliances, e. Olstad, supra. Olstad v. box was a question and out of truck jury. of fact for the determination of the . Since the record without con- negligence, contributory tradiction, assumption negligence, and of risk are in climbing into and out of jury. questions of fact for the the truck box in the manner in which he did might reasonable minds differ as to it, reasonable disagree men cannot ordinary whether the had used assumption of risk. diligence care and and whether the doctrine of For reasons stated in opinion, assumption applicable, of risk was order denying the motion of fact for the notwithstanding the verdict is reversed and the case is remanded to the district court I would affirm the order of the trial with instructions to dismiss the denying court the motion for not- complaint. withstanding