149 N.W. 337 | N.D. | 1914
Lead Opinion
This is an appeal from a judgment for the plaintiff in an action which was brought by a farm laborer of the age of nineteen to recover damages for injuries sustained while assisting his employer in ■exploding dynamite while seeking to drain a slough. The complaint is “that the defendant, the employer aforesaid, required of him (the plaintiff) services outside of the duties ordinarily incident to his employment and subjecting him to additional danger, to wit, the placing of dynamite for the purpose of explosion; that plaintiff being ignorant of the use of dynamite and the danger incident to the use thereof, ■and relying on the defendant to protect him from any danger in compliance with the specific demands of the said plaintiff, he being then ,and there present and commanding, said commands and directions being negligently and carelessly given by the defendant without warning plaintiff of the dangers thereof, placed the said dynamite in the way, and at the time directed by the said defendant, and while trying to push the said dynamite down into the hole prepared for it, as negligently and carelessly commanded by the defendant, the said dynamite, without fault or negligence on the part of the plaintiff exploded,” etc.
These allegations, with the possible exception of that part which negatives contributory negligence, are so clearly sustained by the testimony of the plaintiff (and this testimony must of course be considered -conclusive upon this appeal) that we deem no discussion to be necessary here. As to whether contributory negligence is shown to have existed, however, is a matter of far less certainty, and though we adhere to the negative of the proposition, it may be well to consider the evidence in detail. In doing so, however, all that we can and should consider upon this appeal is the evidence of the. plaintiff himself, as the same, though contradicted to a large extent by the testimony of the other witnesses, is not so grossly improbable as to be unworthy of ■credence, and has the support of the verdict of the jury. This testimony is to the effect that the plaintiff was about eighteen and one-half years of age at the time of the accident, and had been in the United
There is no pretense that the defendant at any time warned the-plaintiff of the dangerous character of the work, or explained to him the use' of dynamite. It is clear that the plaintiff was working in an occupation outside of the usual occupation of a farm laborer. From the evidence of both parties it appears certain that the defendant lighted the' fuse (which was 2¿ feet long) before the dynamite was pushed down into the hole. Plaintiff testifies that he was directed by the defendant to push it down at least two times after it was lighted. Ac-" cording to plaintiff’s testimony no warning or order to desist was given until it was too late. Defendant, according to this testimony, was clearly guilty of a negligent breach of duty. The only question in the case is whether the plaintiff himself was, as a matter of law, guilty of contributory negligence or assumed the risk of the accident, — in other words, Was the danger “so patent as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence, and experience.” Umsted v. Colgate Farmers’ Elevator Co. 18 N. D.
Here is a case where a boy helps in the explosion of dynamite, together with and under the direction of his employer. He knows generally of the explosive nature of dynamite when placed upon the surface of the earth, but not of its upward tendency when placed in water and from 19 to 23 feet beneath. He has no idea of the time which a fuse takes to burn. Provided that he had left the charge in ample time, that is to say, before the fuse had burned out, it is quite clear that the accident would not have happened, and it is equally clear that it was the duty of the employer who was directing him to warn him of that time, and that the boy neither assumed the risk of his employer’s negligence in this respect, nor was it contributory negligence on his part, being unacquainted as he was with the burning time of fuses, to rely upon his employer exercising that care.
There is no merit in the contention that the interrogatories are in no way responsive to the issues of the case or supported by the evidence. These issues, it is maintained, were (1) that the master had taken the employee out of his ordinary labor, and had put him into the business of handling dynamite; (2) that he had not warned him in the use of it; (3) that it was carelessly handled on the day in question; (4) that the servant was free 'from contributory negligence. There were, it is claimed, no findings whatever upon the questions of the proximate cause of the injury, — whether it was the failure of the master to warn the employee in time to get away from the hole, or whether it was the failure to warn him that dynamite was dangerous, or whether it was a failure to inform the plaintiff just when the dynamite would be likely to explode.
We concede as a general proposition the truth of appellant’s contention that a special verdict must find the facts as alleged in the complaint, and that a finding that does not pass upon the material issues in the case cannot form the basis of a judgment. Morrison v. Lee, 13 N. D. 591, 102 N. W. 223; Clementson, Special Verdicts, pp. 208, 209. The main trouble with the contention of counsel; however, is that in the present case the verdict was not a special verdict. It was, in fact, merely a general verdict with special findings. Such a verdict is, we believe, authorized by § 1034, Hev. Codes 1905, which among other things provides, “The court may also direct the jury, if they render a general verdict, to find in writing upon any particular questions of fact to be stated as aforesaid.” We concede that these particular questions must be germain to the issues involved, and not calculated to lead the jury astray. We do not believe, however, that they need cover all ■of the questions and issues in the case. The case of Morrison v. Lee, ¡supra, which is relied upon by counsel for appellant, relates to special verdicts, and not to special interrogatories. There can be no doubt that the questions here propounded, though not covering all, were pertinent to the issues involved. According to counsel for appellant himself, “the gist of the complaint is the failure to warn the plaintiff of the ■dangerous character of dynamite, and negligence in “commanding in the use thereof.”
It is true that the common law confers upon employers the right to ■decide how their work shall be performed, and to employ men to work in an unsafe place and with dangerous instruments, and without incurring liability for the lives of the workmen who knew, or should have known, the hazards of the service they have chosen to enter. If an ■employee enters upon the service knowing the risks involved, he is regarded as having voluntarily incurred them, unless the employer urges •or coerces him into the danger, or in some way directly contributes to the injury. See note to Houston, E. & W. T. R. Co. v. De Walt, 97 Am. St. Rep. 877. It is to be remembered, however, that in the case at bar the proximate cause of the injury was the failure to leave the hole before the fuse had time to burn out, and it is quite clear to us that it was the •duty of the employer to see that this was done. It is to be remembered that the fuse was lighted before the dynamite was placed under the water, and that the accident happened while it was being pushed down. It would be absurd to contend that in such a case, and when the work is done under the direction of a master, the time when the same can be safely continued is a matter for the individual opinion of each of the ■employees interested.
We have carefully examined the instructions which were given to 'the jury, and though some technical criticisms may be made thereon, we find no prejudicial error.
We cannot say that as a matter of law it was contributory negligence ■on the part of the plaintiff to help in placing the dynamite in the hole with the lighted fuse attached thereto, and to push it down as ■commanded by the defendant. This is a question for the jury, and not for the court, to pass upon. The same is true of the actual acquaintance with the use of dynamite that the plaintiff possessed, and as to whether the admissions claimed to have been made by him were in fact made. It is also true of the question as to whether under the circumstances •the defendant should have instructed the plaintiff as-to the particular
We find no error in the charge that “the plaintiff in this case, gentlemen, was a witness in his own behalf. You are the sole judges of the credibility. All statements made by him, if any, which are against his own interest, must be taken as true, but his statements in his own favor are only to be given such credit as the jury, under all the facts and circumstances in the evidence, deem them entitled to,” which instruction was given after the following: “I instruct you further, gentlemen of the jury, that if the injury complained of on the part of the plaintiff was not due to his own carelessness and failure to obey orders, under the rules of law as I have defined them to you, then the statement upon his part, if you find any such statements were made, that the injury was due to his own carelessness or want of obedience of defendant’s orders, in and of itself would not preclude or necessarily prevent a recovery. His right of recovery does not depend upon what he may admit or what he may deny, but it is dependent upon the state of facts upon which due care is predicated. At the same time, an admission of fact made under such circumstances at the very time of the happening of the accident, when all of the facts were fresh and open to observation, and made by a man who had engaged in this work, and made against his own interest, is evidence which you will give such weight as an admission of carelessness as in your judgment it may be entitled to.”
In the latter case the court was speaking of admissions made or supposed to have been made by the plaintiff soon after the accident, but which the plaintiff denied having made. In. the former case, he was speaking of the testimony of the plaintiff which was given upon the trial. “It is hardly necessary to add,” says Mr. Jones, in ¶ 296 of his Commentaries on Evidence, that “unless admissions are contractual or unless they constitute an estoppel within some of the rules already stated, they are not conclusive, but are open to rebuttal or explanation, or they may be controlled by higher evidence.” It is also true that the court spoke of admissions which were claimed to have been made at the very time of the happening of the accident, when some of those
Nor do we find reversible error in the following portions of the charge to the jury and of which complaint is made': “I instruct you further, gentlemen of the jury, that when the master employs a minor, that is, one less than twenty-one years of age, to perform work which is dangerous or hazardous to the person of such minor, it is the duty of the master or the employer to explain to such minor the proper manner of performing such work, and also to explain to such minor the dangers and hazards to his person incident to the performing of such work, and how to avoid such dangers, unless the dangers and risk incident to such work are patent and obvious to persons of like and intelligence of such minor; but the master, on the other hand, has the right to rely upon any representations made to him by the minor and employee as to said minor’s experience in connection with any proposed work to be done by said minor, and I instruct you, further, gentlemen of the jury, that a servant, when he engages in a particular employment, is presumed to do so with a knowledge of and taking of the risk of its ordinary hazards, but when the servant shows that the injury grew out of the master’s negligence, the burden is then upon the master to show that the servant knew and understood the increased dangers.” Counsel states and contends that “while it is true that the law of contributory negligence in this state requires the master to establish such negligence by a proper preponderance of the evidence, yet it has never been the law that a servant nineteen years of age who has known the use of dynamite, both in the old country and in. the new, who has had experience in the use thereof, and who has received an injury as the
Tbe question was tbe knowledge of tbe danger, and whether tbe employer was justified, under tbe circumstances, in assuming sucb knowledge, and tbis was a matter for tbe jury to pass upon. If we believe tbe plaintiff’s testimony in tbis respect, and we have on tbis appeal no option but to do so, it would have been tbe duty of tbe defendant to have warned tbe plaintiff of tbe danger, even if be bad been an adult.
Tbe judgment of tbe District Court is affirmed.
Rehearing
Counsel for appellant complains because tbe testimony of the defendant is not quoted at length in the opinion. In the opinion we expressly stated that when a motion is made to set aside a verdict on the ground of the insufficiency of the evidence, the only question at issue is whether there is sufficient evidence to support the verdict, and the fact that, there may be much evidence in contradiction thereof is immaterial. When this statement is made, and it is clearly intimated that it is the plaintiff’s evidence that is being considered, we do not believe that any confusion or erroneous impression can be created. The evidence of defendant’s witnesses is indeed only material on this appeal on the question of the instructions, and we believe that we have given sufficient thereof for the consideration of the same.
Counsel further complains because the following instructions were not specifically passed upon by this court: “I instruct you further, gentlemen of the jury, that a servant when he engages in a particular employment is presumed to do so with a knowledge of and a taking of the risk of its ordinary hazard, but when the servant shows that the injury received was in consequence of a risk not ordinarily incident to the employment, and that said injury grew out of the master’s negligence, the burden is then upon the master to show that the servant knew and understood the increased dangers.” It is claimed that this eliminates any care upon the part of the servant. Counsel also complains of the following instruction: “I instruct you further, gentlemen of the jury, that if an employee, in the discharge of the duties in his line, voluntarily takes a place which be is not required to take, he assumed the risk which may attach to the place he may have taken by reason of his employment, and if you find that the plaintiff in this action, of his own free will, without invitation from his employer, the defendant, and notwithstanding the warning of the defendant, placed himself in an unnecessarily perilous position, and in consequence sustained the injury complained of, and you further find that the defendant was in no way negligent, plaintiff, under these circumstances, would not be entitled to a verdict at your hands.” This instruction, however, clearly negatives the complaint in regard to the one formerly quoted; namely, that the former instruction “eliminates any care on the part of
Counsel has, however, throughout his brief and in his petition for a rehearing, taken isolated portions of the 'instructions, and has refused to consider the instructions as a whole. The question is not whether any particular clause or paragraph in itself is complete and satisfactory, but whether the instructions as a whole are such as to present the case fairly to the jury. We have examined the instructions. as a whole in this case carefully, and are satisfied that the case was fairly and fully presented. The second instruction quoted by us, for instance, cures any omission in the one first quoted, while the complaint in regard to the subsequent one, namely, that the court erred in using the words, “and you will further find that the defendant was in no way negligent,” and that such words seem to eliminate the offense of contributory negligence, is .abundantly met by the other portions of the instructions. In one of them, for instance, the court says, “I instruct you, in this connection, that in determining the relative degrees of care, the want of care manifested by the parties at the time of the injuries, the age and discretion of the party injured, is a proper subject for you to consider; and in determining the issue of the plaintiff’s contributory negligence you may look at all the surrounding facts and circumstances in evidence before you, and determine therefrom whether or not the plaintiff used such care as a person of like age and ordinary prudence would have used under the same or similar conditions, and the burden of proof is on the defendant to show contributory negligence of the plaintiff.” Again the court said, “Now, gentlemen, by contributory negligence is meant some negligent act or omission on the part of the plaintiff in an action, some act or some omission on the part of Oakland, which concurred or co-operated with some negligent act or omission on the part of the defendant as the approximate cause of the injury complained of by plaintiff; and in this connection, gentlemen, I instruct you that if you believe from the evidence that the plaintiff himself was guilty of contributory negligence approximately contributing to his injury, as contributory negligence has been defined, you will find for the defendant, even though you should believe that the negligence of the defendant
Counsel further complains and states that “this court overlooked entirely the question of contributory negligence involved in this case. It overlooks entirely the fact that this story that was told afterwards was, in the judgment of every man, woman, and child that knows the defendant in this case, a manufactured story learned for the purpose of this lawsuit.” He is absolutely correct in this assumption, except that this court has overlooked the question of contributory negligence. This court knows nothing of the opinion “of every man, woman, and child that knows the defendant.” It is governed by the record merely, and has nothing to do with any opinion that is not expressed in the record. In fact, it is governed by the facts disclosed, and not by opinions, whether given in or out of the court. Nor, too, does it‘believe that it is overstepping its duty in affirming a judgment when it can see no prejudice in the record, and believes that the instructions to the jury, when taken as a whole, presented the ease fairly and fully, and that no errors of law were committed, even though it appears that there is a material conflict in the evidence which the jury must pass upon.
The petition for a rehearing is denied.