Olson v. Kem Temple, Ancient Arabic Order

prejudicial judgment ap- no disclosed error. Tbe order and pealed from are affirmed. J., JJ.,

Nuessre, Christianson, C. Burke, Grimson con- cur.

[File 7157] No. FRANK KEM OLSON v. Ancient TEMPLE, Arabic Order Mystic Corporation A Fraternal Shrine,

(43 385) NW2d June 1950 Opinion filed Rehearing 15, 1950 July denied appellant. & for Shaft, Burtness Bangs, Gillig, Philip

Day, Lundberg, B. & Stolces, Vaaler respondent. for per- damages plaintiff for recover J. The seeks to Morris, falling injuries by a ladder while him from

sonal decorating received grounds pavilion at the fair of a the interior by given preparatory social function N. to a Forks, Grand D., plaintiff, jury for the The a verdict the defendant. rendered whereupon for alternative defendant made motion in judgment notwithstanding The trial. the verdict or for a new ground granted trial “on the trial the motion for new court support in -that the the verdict the evidence insufficient to is negligent, or that the defendant evidence does not show contributory negligenceThe plaintiff that the plaintiff appeals was free from granting trial. from the order the new part pavilion occurred The the accident main where length It 60 feet wide. a dance about feet floor headquar- meeting place located some distance from property paraphernalia are ters of the defendant where its kept. arranged stage of the defendant director corporation other of the defendant and four members (cid:127) decorating. They pavilion to six o’clock do the went about pavil- morning July 1948. There was no one they among arranged them and consultation ion direct to be There was a wire how work was done. themselves running lengthwise through building from the center decorating part feet A scheme to 16 above floor. required paper from the streamers be run sides of the build- ing stage stepladcler wire. The director had caused a to this defendant’s.property pavilion room taken from be available for the use decorators. The set up attaching paper under the wire and while this ladder stream- injured. ers to the he fell wire ladder and was given, The ladder had to the defendant been one its years kept members some fifteen before the It accident. property put in and about defendant’s room and had been including cleaning to various uses that of windows. It was “rickety”. light described It two witnesses as was of con- weight. repaired struction and It had been from time to time by laying up tightening it down on its side and the nails and rigid. steps grooves. screws so as make it more The into fitted length It fourteen feet was when folded and somewhat less up supports than that when set with the extended. A cross supports brace between near the bottom of the two had missing years been a for number of but its absence does not appear have contributed to the accident. plaintiff up

When the ladder under he wire saw set. legs. it that nothing the ladder on was level all four He saw that would cause him to think that it was unsafe. He is six height. feet one inch in The wire was about a foot and a half plaintiff above the ladder. The ascended until the wire was height. about shoulder He then attached some streamers, along descended and moved the ladder under the then wire, again repeated ascended and attached more streamers. He this process eight period prior or ten times over a anof hour to the along accident As he moved the ladder under the wire he higher found that it building. near the was center of the When stepped up step higher he ascended the last time he one than step tipped he had been before. The he fell to the floor injured. plaintiff prior and was The had never used ladder morning injury of his but had seen in the defendant’s property plaintiff placed In room. his use ladder the his hands he sides as ascended and There descended. anyone step nois evidence a noticed that was loose or would tip prior plaintiff’s to the accident. When one of the fellow picked up he the ladder after the accident noticed that

workers top step from the could be third tilted hack and second step appear whether this that caused It forth. does not up. higher plaintiff’s None of it was one fall or whether beginning plaintiff’s of his fall. fellow workers saw in the evidence: There is no conflict substantial plaintiff requested perform for certain services The appliances furnished materials, the by with tools, defendant representatives. the defendant’s authorized injured agreed performing that he while services perform defendant. The services were for benefit of the statutory recognizes gratuitous. law but does not define Our gratuitous employee. 1943. It is clear Sec. 34-0204 RCND contemplates that one who undertakes to do this statute request but without consid- a service for another at other’s perform- gratuitous employee engaged while eration is provides RCND 1943 ance of such service. Sec. 34-0203 indemnify employee employer, cases, “An in all shall ordinary care.” This want of losses caused provision former’s employee applicable gratuitous in the case of gratuitous employee well as an for reward. The acting scope employment employee the time within the of his presented injured. here Under circumstances liability apply and serv- as in the case master same rules ant. employer general use

It rule that an is bound to ordi is the nary employees reasonably with safe and care to furnish his appliances proper Meehan v. with which to work. tools Railway Company, 183; 432, 13 ND 101 NW Northern Great Railway Company, 158, 51 ND Prefontaine v. Great Northern 175; Servant, 35 138 and 480; Am Master and Sec. Jur, 199 NW general lia 206. This rule CJS, Servant, 56 Master and Sec. exception. widely recognized bility subject Where is appliance simple therein defect is in construction and a tool or special knowledge, em and the skill without or is discernible ployee employer qualified the defect to detect is well as as may employee resulting appraise danger therefrom the injury employer damages due an not recover

3.69 employer. that is- unknown to Varied and such a defect “simple application tool” doctrine is extensive by disclosed 143; 35 56 CJS, Am Sec. Master Jur, these authorities Servant, 216; Sec. Labatt’s Master and Servant 2nd Edition, Partridge, Vanderpool 112 v. 79 Neb a; 165, 318; Sec. 924 NW 13 LRA and note. the ladder 668, NS Annotations as a simple tool are 13 LRA NS 145 ALR 687, found and 40 542, LRA NS 832.

The’great authority weight of tois the effect that ordi nary portable stepladder simple appliance tool or is within Kelley meaning simple tool doctrine. v. Brown, 262 356, 900; Mich Nichols v. Bush, 473, 247 NW 291 Mich 289 NW Mozey 219; Erickson, 687; v. 182 Minn 234 419, NW Person v. 224 541, Minn 29 Hall United 360; NW2d Okes, States Can Company, App ning 76 Div 475, 617; 78 NYS McGill v. Cleve Company, land and Traction 79 Southwestern O St 86 NE 203, Roper Rep LRA 989,19 793, 705; NS 128 Am St v. Ware Shoals Manufacturing Company, 139 48, 137 SE 210. SC Supreme

In Etel v. Pac 311, 931, Wash Grubb, Washington apply simple Court of refused tool doctrine stepladder Company, in a In Puza v. case. C. Hennecke stepladder Wis 149 NW the court held that a was a place apply simple to work and declined to tool doctrine. agree majority ordinary portable We with the of courts that an stepladder simple appliance employee tool and that the usually qualified any well who uses to detect defect there- employer in as is the who it. furnishes question may longer

The ladder in have been somewhat than average stepladder but it was otherwise of usual construc- height tion and there is intimation no ladder any way contributed the accident. The was several steps top up from the when he fell. He set the ladder in the eight first instance and ascended and descended some times over period prior of about an hour accident. testimony Much stress been laid on the has that the ladder “rickety”, “wobbly”, or as one witness states and had been years. in that condition for of None a number of witnesses acquired through knowledge condition was of this testified special inspection any inference examination. The or unusual rickety If this be its so, obvious. condition was plaintiff apparent he set to have been must condition along up descended, and moved ascended ladder, pro- attaching the streamers his the wire as work under gressed. and the condition to the accident All of the witnesses including plaintiff, of the de- were members ladder, of the engaged corporation all were fendant fraternal project important preparing of an the entertainment danger appraise plaintiff’s opportunity guest. at- The equal upon to that ladder least use tendant knowledge upon and conduct and members whose of the officers negligence against charge the defendant. he seeks to base wobbly rickety condition of or was a ladder was If the which that observation would nature as be discovered accompany naturally its use. testimony that he plaintiff’s indicates does not attribute

The debility general but to the fact ladder, accident upon placed weight tipped The con- step it. when that a step and there is no evidence obvious was not dition of anyone step prior to the accident. Conse- was loose knew the agents the defendant had an quently, the officers none of plaintiff obligation opportunity loose warn or an liability knowledge, of the defendant step. In the absence only obligation resulting from arise this defect could agents thorough part to make a more of its officers and on the obliged inspection do. than detailed part obligation did not exist with of the defendant on the This respect inspect appliance, ability simple tool or to a being equal. opportunity to do so judg- motion in the alternative for defendant made The notwithstanding a new trial. The court verdict or for ment impliedly denying granted motion for trial, the new thus ap- judgment notwithstanding has the verdict. ground pealed granting trial, a new from the order presented Upon here the record the verdict should be sustained. appealed is in error in this contention. Tbe order from is affirmed. J., concurs.

Burke, I Cb. J. concur tbe result reached in tbe fore- Nubssle, opinion going by Judge syllabus written and in Morris, tbe points adjudicated. tbe plaintiff, organiza-

Tbe tbe member of defendant fraternal decorating tion, volunteered to assist in a ball to be used tbe provided stepladder Tbe defendant. defendant for bis use. ordinary stepladder Tbis was such as is described in Web- Dictionary portable ster’s New International esp. steps, as “A set of comparatively steps place one with rungs flat, broad hinged steadying.” and with frame to tbe back for The de- years. fendant bad owned ladder this for about 16 It was in general premises by use and bad been used about defendant’s many light of its members. It was of wood construction. Tbe rickety, evidence as to its condition bly, it old, and wob- apparent anyone seeing using joints as was it. “Its they squeaked wiggled were you loose and when walked height on them.” spread. It 12was or 14 feet in when not If stepped upper steps a user on swayed tbe and moved around it required somewhat and steady someone to stand beside it and repaired by being it. It bad been on occasion renailed or hav- ing tightened given its screws or both. It was to tbe defendant by one of its bought members who was a He bad it trucker. moving, from a customer for whom he did some and the occa- buying long sion for was that it was too to be carried in moving tbe van. It was never used in bis business. stapling

Plaintiff used tbis ladder in streamers to a wire stretched 12 or 15 feet above tbe floor across the ball that was being using decorated. Before tbe ladder, tested it firmly. to see if it would stand He bad used for an hour or necessary thereabouts without accident. It then became for him step higher says to climb one step than before. He that tbis causing was loose and turned under foot, bis him to lose bis step eight balance and fall. Tbe was six or feet from the floor. serious, very injuries he suffered donbt but There no he fell to one side the ladder fell, from this fall. When opposite tipped direction. The ladder itself was over in the inspection at the time of trial. available for jury. tried to Plaintiff a verdict. On The case was ground a new trial trial court ordered made, motion support the in that evidence is insufficient verdict “that negligent, not that the defendant the evidence does show was negligence;” contributory plaintiff free or that the was^ appeal that order. and this is' from simple tool doctrine controls The defendant contends simple this ladder a tool. That in the case. That instant any plaintiff or to other condition was as discernible to its any of defendant, none as it was to of the user officers particularly there it. examined That therefore whom had part. negligence its actionable on . no opinion or whether ladder be consid- I am of the that provided simple fact defendant for the mere that tool, ered a plaintiff’s particularly pointing out him its con- use without plaintiff negligence. The does not constitute actionable dition organization. He volunteered a of the defendant was member compulsion. acting If the con- He was under no services. his on examina- of the ladder was as discernible such dition him give reasonably prudent any person to it would before tion any using then of the defendant, it was to officers it, as liability negligence part. no on the-defendant’s there can be capable, zany. intelligent, plaintiff He an The no experienced that he had This the fact man. is evidenced operator agent telegraph station risen from important position and small dispatcher. train whether motion The rule in this state is that established granted largely discretion- be denied is for a new trial shall or judge, ary discre- the trial and unless there is abuse with denying granting part, it will not order his tion ' particularly is trial And is so when a new this disturbed. jurisdictions granting a granted. an order In in some fact, appealable. 55 ND Parkins, Martin v. trial is not new See light cited therein. Viewed 213 NW and authorities opinion foregoing rule, I record is am appealed from that the order should be affirmed. (dissenting). agree paragraphs I J. with

Christianson, syllabus parts opinion pre- 2 of and with those pared Judge paragraphs which relate; Morris to those but agree opinion I do not with remainder of the or with the concurring opinion of I Justice. am of the view Chief questions negligence, contributory negligence, and as- sumption jury, of risk were for the the verdict of the jury supported is the evidence. dispatcher

The a train for the Northern Great Railway Company The Forks. defendant at Grand fra- corporation organized ternal under laws of this state. On July injuries personal 10, 1947, sustained severe as a falling working result of from ladder while he was for the decorating pavilion grounds. pa- defendant at the fair length sixty vilion had a “dance floor” feet in some hundred and high ceiling feet in width. It had a arched with timbers across. running lengthwise length There were wires the entire building. placement The wires were used for of decorations when ceremonies, dances, or festivities were held therein. There stage was a about the middle of the floor on which the orchestra approximately was seated. The wire was fifteen feet from the approximately floor at each end and sixteen feet at the center. Imperial Mystic The Potentate of the' Shrine scheduled to Temple July visit Kem on the 10, 1947, and officers the de- making arrangements reception fendant were for and fes- pavilion. tivities incident thereto at the corporation.

Pierce and Mclver were officersof the defendant (the officer) Pierce was the Potentate, chief and Mclver was stage Shortly July the director. 10, 1947, before Mclver, stage plaintiff defendant, director contacted and asked pavilion preparation him to do some work at the for the plaintiff agreed festivities. The to come and work. He testi- pavilion. fied that he was there would told be ladder at the In early morning July 10, 1947, other four pavilion engage men drove out to the in the work which had Cloyd assigned Steenerson, Ben men were them. These been plaintiff, Frank Hoffman and Misner, Jake Clarence Grove, including- long- equipment, They that certain found Olson. They step with re- conferred delivered. first had been ladder, spect division of work. and the to be done work previous stage It occasions. on had decorated Steenerson that in agreed that and he work at that and Grove should decorating fasten the Olson should the main hall the Hoffman should that Misner and on the wire and streamers they hung place from at the sides as ends of streamers plan decorating to create the main hall was the wire. appearance paper coming with streamers a tent-like fastened at the wire and sides. brought only one ladder had been that

Plaintiff testified pavilion it work; in their that the men left at the for use of high; that he had fourteen feet ladder was a wooden about standing in cloak it the ladder seen never used but Temple property Forks; in Grand room in the room top tapered than at the that it narrower ladder so legs which there two folded when bottom; that were back these extended that when were taken down and the ladder was top legs at the that there was brace ladder had four pushed lock the ladder and make it which would be down ready he the ladder he for work took that when was solid; top pushed ; as to make the' ladder solid the brace at so down up he it he set the ladder for use shook to sure when legs floor; make all four on the did not was balanced steps inspection personal that he but looked of each anything He indicate that was unsafe. and did not see part up using the I made sure center it, I for set it said, “When it was on all four to be sure balanced and I shook it down, was legs level all I that the ladder was on the there. saw on floor any- legs, appeared didn’t to use. I see the ladder safe four and thing that the ladder was unsafe.” that me to think would cause ladder for about an hour he had used the when He testified that any the he not notice that occurred; that did the accident steps weakening; that the floor was or were weak ladder dry it; that in on work- that there was no rubbish clean and and just high enough ing wire; so he reach he climbed could the up put did have reach over that he streamers only high enough that the ladder wire; he ascended so that his opposite operation that wire; shoulders would was slip staple the wire and then that it; streamer over im- mediately point fell had he he reached where the before wire higher necessary step it him and became for to take one step higher he before; than that on which he then probably stepped six floor; about or seven feet from the step fall; tilted he started to that he did not lose tilt that was the that caused balance, fall; him that at place approximately the accident occurred wire was floor; feet that he sixteen above the did not see the ladder after personally step the accident did not know whether the broke. (cid:127) undisputed personal It that sustained severe in- juries as a result of fall. July acting

Pierce testified that he 1947 was Potentate (chief officer) corporation of the defendant that one Mc- stage acting director; lver was that as he Potentate instructed stage arrangements necessary Mclver, the to make director, pavilion prepared grounds at the have State fair reception decorated for festivities to be had incident to the Imperial Potentate. Pierce further testified he that was quite familiar with the ladder from which the Olson years.- fell and had been'so some sixteen He said the lad- flimsy, rickety wobbly. der a ladder and was He stated pavilion he evening that saw the ladder at the before the inspection accident occurred, but no made it. In answer to question anything wrong whether there was with ladder other than he had he stated answered “no.” He further testi- acquainted plaintiff; fied that he was with Olson, after hospital he accident visited him at the several times and that one of these two him occasions told the ladder was so pavilion unsafe should never have been sent out to the at all. July stage that in 1947 he Mclver testified director corporation; stage appointed defendant director is appointive divan; an active member of the the Potentate and twenty-four stage he had a crew of director men work- by the Potentate ing direction; he was instructed that Ms under put grounds pavilion decorated at the fair the to have proper Imperial reception shape That Potentate. for the equipment to be used occasions a lot the defendant had arrangements deco- with men to that he made of that kind men; that one pavilion, Olson was that rate the July that-he 8th; 7th or arrangements made about were such Company take arranged Transfer to of the Hiler Hiler with one including pavilion, equipment a ladder to be the certain out “especially paper up stream- putting the decorations used evening pavilion he out at that was He testified ers.” that he various articles and observed the accident before approxi- stepladder arranged was out; that send evening; mately high; there that he saw it feet fourteen that kept property usually in the room off that the ladder Temple. stage He testi- room the in the cloak and sometimes for about fifteen with this ladder he had familiar fied that years; been joints.of rickety, the ladder that the that the ladder you wiggled they squeaked when walked that loose; Were wiggle you got when a little would and that ladder on it top. near stage director of Kem Tem- he as that served

Hiler testified he in the transfer ple 1943; that business from 1932 .equipment pre- referred to and hauled Grand Porks equipment among testimony pavilion; that vious (Hiler) stepladder long he had donated to which was a there it has retained that been 1931 and about defendant purchased ladder that he time; defendant since moving away the ladder and found that who was customer during moving van; long get the time into was too repaired stage that he laid he ladder, director served as he tightened the nails and the side and screws on the ladder down steps rigid; in the ladder to make more in it so as grooves; familiar with the condi- into were fitted pavilion. shortly taken to it was ladder before tion of “It wasn’t he answered: was its condition?” asked “What When top get up stand I want wouldn’t too bad. rickety somebody steadying But it it. without on it you got up ago. If and moved' around said a it Mclver while somebody sway. steady it, there If was to was all would perfectly you got up right. still it And if and stood was all up good top right. get But it and reach over wasn’t to paint anything or or four to calcimine or of that three feet high was for such use. It was The ladder unsafe and sort.” light soft wood; construction and made of that the ladder steps rungs; the flat and that he ladder had instead knew had been renailed at times but did not know when was last re- nailed before the accident. he of the men who

Grove testified that was one went to the grounds plaintiff; fair the that with Steenerson and after the pavilion they reached men the discussed the work to be done how it and should be It was that divided. decided Steenerson stage plaintiff and Grove should decorate the and that the put up decorations, the Olson should is, streamers that that placed doing were to be on that in this wire, work Olson paper the ladder used to enable him to fasten the streamers pavilion they to wire; that the ladder in the was when ar- morning; rived that that at the time the accident occurred the plaintiff nearing pavilion, place the center of the —the working, (Grove) where Grove and Steenerson were that he happened plaintiff falling; around turn and saw that plaintiff step had left the ladder and was between the on standing he which had floor been. when Grove noticed plaintiff him; that after the fell Grove and Steenerson rushed where he was and took him off floor and later to the hospital; they that later came back went on with their work; they through after that were with their work he kicked out the step people might last the ladder so that know it was not again. be used fit to that he one of testified men

Steenerson who went the. July pavilion morning pre- the paring on the assist in 1947, to pavilion reception Imperial for the Potentate; brought plaintiff that he car; Olson Grove out they pavilion morning that arrived at about o’clockin the and that later; Misnef and Hoffman came that he worked decorating platform stage where the orchestra sitsthat pavilion decorating the main went work lengthwise through the that ran

hanging the wire on streamers using he performance work pavilion; .of such that the wire with step the streamers to he fastened ladder; that (Steenerson) and as he looked heard stapler; a noise he tipped over on floor and the ladder noticed that around helped by; lying floor close he pavilion hospital; him back to that later came take they to use the ladder wanted work; with the and went on anything, he observed, he said: “I if what, and when asked grabbed up it picking ahold of or some- the ladder —I in found top step up it thing by the found was loose. toward one —I — you say it but was loose it, loose could shake I it was so wouldn’t you forth.” He further 'testified that could tilt it back and so up top; step towards the that he referred was the to which definitely step say third the or from he it was second not would jury top it thereabout. When asked show but was step by step tilting goes he “The said: in he meant what way (indicating hand).” it with side, and moved this from supports steps grooves on the side ladder. The in were say to the of the lad- what he as condition would When asked “I know it wouldn’t be he he safe der from what enough saw answered: my home. It that unsafe.” He have around was through using they were the ladder he broke testified that after anyone; again by that took that it not be he could used a so steps any- by so if and knocked out some that two four they around know it one else found ladder could should going anybody get “I He said: wasn’t to let else used. unsafe, it was, If the ladder which we assumed hurt it. was lay somebody going around else come let for we weren’t up happen something along them.” and climb and have this that the It that the evidence in case shows will be noted injuries plaintiff of a fall as a result serious sustained performing step for he certain work ladder while was step decorating pavilion; that ladder which in defendant plaintiff using which fell been furnished and from by performing particular work the defendant for use in performing plaintiff plaintiff time he fell; at the part selecting step only- ladder;' in had no it was the available, appliance plaintiff by made to the the defendant for performing work; nse in his fall was occasioned namely, by step tipped in ladder, a defect that tilted or stepped upon when the ladder nse of the it plaintiff’s injuries. this resulted in fall and Plaintiff’s predicated upon proposition cause of action is that the de- appliance negligent failing fendant was to furnish a safe damages injuries tool and is liable for sustained negligence-. result of defendant’s The defendant negligent plain- that it denies and asserts that if it were the guilty contributory negligence. tiff assumed the risk and jury framed issues -thus were under in- submitted quite jury structions favorable to the defendant. The deter- questions plaintiff' mined all favor and returned a verdict his favor. provide:

The laws of this state employer, indemnify employee “An in all shall cases, ordinary losses caused former’s want care.” NDRC 1943, 34-0203. employer employees duty “a

An owes to his to exercise rea- employees appli- furnish with sonable care to safe tools employer may and an work, ances with which do their be held representatives employee injury liable to an or his or death resulting employer’s comply from the failure to with such p Jur, duties.” 35 Am Master and Servant, 138; Sec CL 569, Ry. 1913, 34-0203; Sec NDRC 6108; 1943, Cameron v. N.G. Co. Ry. ND 124, 1016; 8 77 NW 130, Meehan G. N. Co. 13 ND Ry. 183; 101 Prefontaine N. 432, NW v. G. Co. 51 ND 199 pp 480; NW 56 CJS 912.

Corpus says: Juris Secundum “Broadly positive duty stated, it is the of a master to fur- safe nish his servant with suitable and instrumentalities where- places p with work.” wherein, to do his 900. CJS part negligence “It is actionable on the of a to fail to master ordinary or to furnish, fail to or reasonable care to .exercise proper appliances furnish, his with servant tools and reasonably prosecution may required of safe for. be p 912. work.” CJS general these

There is denial existence rules no principal opinion that rules are these sub- it is said in but simple ject exception tools; to an case of common question simple step tool and that in here was a ladder duty part consequently the' was no breach of there though step tool ladder was not a safe defendant even plaintiff’s injury. in defect therein resulted simple having rule tool doctrine” is not a The “so-called meaning. principal It true as said in definite or settled opinion there has “varied and disclose been authorities application doctrine, of” but an examination extensive this jurisdic- adjudicated that even in the same discloses cases always harmony. adjudicated in cases are not tion by application and the re- of the so-called doctrine courts by in Labatt work on Master have been summarized sults n and Servant as follows: many injury undoubtedly, where the cases, “In caused ordinary regard simple tools, rules in defects duty reasonably ordinary master’s to use care furnish safe applied appliances the fact without reference to have been simple alleged appliance tool; defective fact but many made a distinc- cases of this character the courts have injuries simple caused the so-called tools and tion between appliances. complicated dangerous more those caused large involving number decisions cases this In view bring has been considered desirable cases character, many together although in one of them would more section, placed parts logically other of the treatise. various length stating gone to the have “In the courts some cases ordinary requiring care to fur- to use the rule reasonably master injury apply appliances where nish does safe simple by that the In other cases is said tool. was caused' a may injuries anticipate required result not to master is say Again, simple cases some tools. from the use of defective injuries by simple simply caused is not liable for that the master particular ground specifying the nonliabil- tools, without ity. application simple-tools frequent so-called The most duty of the hold that doctrine found in those cases which is respect simple he continuous, master to is not and is tools obligation simple inspect placed tools which he has under no to in the hands of for use. . his servants . . logical say entirely

“It that the master is does seem to obligation ordinary care furnish under no to to reason- exercise ably simply appliances appliances, those chance safe because to simple be of a more reasonable view would seem character. The place upon nonliability ground be to master to any simple defect must to the servant, tool be obvious any danger be risk of therefrom must to be held assumed by very frequently. him; indeed, the view taken this, allegations negligence part

“Other cases dismiss the on the master statement that defect was obvious, or was as obvious to the as it could servant have been directly invoking assumption master, without rule of risk. ...

“Other eases take the if rather extreme view that a servant injured by simple reason of defective tools, must neces- sarily guilty contributory negligence. . . . jurisdictions simple-tool repudiated,

“In some rule has been or at least restricted in some cases.

“It that, is submitted has been indicated is il- above, as logical say and unreasonable master is free from obligation using ordinary merely appli- care because the simple ance to be furnished is tool, but better view is that appliance simple being entirely tool, and understood obligations servant, latter’s his master himself injuries involving simple are increased; and cases tools scope application furnish a broader for the of the various affirm- ordinarily ative defenses which are available master.” 3 pp. Master and 2d Ed., Labatt’s Sec. 2476-2484. Servant, 924a, simple applicable The “so-called tool doctrine” is not to actions Employers’ Liability injuries under the Federal Act for sus employee employer’s through negli tained due defect, gence, appliances equipment; simple in its as well com plex Pennsylvania . tools within such Co., are Pitt R. act

382 Ry. 199 Co., Airline Supp 733; v. Cole Seaboard 443; F 161 F2d Ry. v. 282 US Cole, Airline Co. 682; 154 Seaboard 389, NC SE & Oregon-Washington Co., R. N. 791; L v. 75 ed Gekas 898, City 752, 315 US York, v. of New 970; P146 75 Ore 243, Jacob Supreme supra, City York, New In v. of L 1166. Jacob 86 ed simple tool the so-called held that of the United States Court arising Act applicable under Jones to cases doctrine is not provisions 688), the Federal (46 of made the which Sec USCA injuries personal Liability relating Employer’s cases of Act injuries personal employees applicable railway cases of of of seamen. employee engaged supra, City an York, New

In Jacob injury ferry while he an boat sustained tender on a as a water open tighten S-shaped ordinary using end wrench to slipped its because head the wrench the manifold when nut on jaws employee causing to lose his use had become worn judge taking the case from fall. The trial balance and jury simple The Circuit Court tool doctrine. relied on the Appeals opinion affirming referred trial court also in its simple and held tool doctrine to the so-called guilty has “because master been to recover was not entitled employee.” negligence respect to the' tool used with of no Supreme of the United States Court 119 F2d 802. Appeals in error in so hold- Court held Circuit following- opinion ing. made the court In of its the course simple concerning pertinent tool doc- the so-called observations : trine simple to bolster used the courts below doctrine,

“The tool affect insufficient, does not that the evidence their belief contrariety opinion place, In the first conclusion. our simple scope doctrine, tool for and the the reasons as to suggest application, uncertainty that it should its legislation, arising apply as the Jones under to cases not rights enlarge designed and rem measure the in some Act, pp injured employees.” L 756-757, 86 ed at 315 at US edies p 1170 finally discharge fully himself efnployer “The does ' furnishing employees by liability tools, suitable to his bound to appliances; see his instru machinery, are maintained a safe Jur,

mentalities condition.” 35 Am Servant, 570-571; 988-989; Master Sec pp pp CJS Cameron v. G. v. N. Co., supra; Ry. Co., N. Meehan G. Ry. supra. employer’s duty In short the is twofold: to furnish (1) his em with ployee reasonably to see that tools, (2) safe such tools are maintained in a safe condition.

In Meehan v. N. Ry. Co., supra, G. was held that the employer had duty the its to performeed employee owed furnish suitable and safe and that the appliances ground for. liability if defendant, was for breach of to any, its maintain the duty in appliances safe condition.

As is pointed quoted out Labatt above statement from his work on Master and the Servant, most frequent application the of so-called simple tool doctrine is found in cases involving- the whether question had been employer in fail- negligent to keep the tools which he had ing furnished to the employee in safe condition. In most of such cases had employer fur- hands, nished reasonably safe tools and placed same in the of the servant for use and the defect or disrepair arisen while tools were in possession This employee. casé- is predicated upon failure of to furnish employer safe- tools his is employee, predicated the failure- upon the employer of to see that which he tools had furnished were- in maintained safe condition.

Obviously character a tool an matter important for in whether determining consideration has exer- employer due in furnishing cised care a safe and suitable reasonably tool of his work. But it employee performance is one- of the tool a- say the character is matter thing to be- in considered whether the determining employer exercised due- duty care in the employee furnish his with performance say tool and another to quite safe because tool is simple- tool, no employer has to furnish a safe obligation has been held in some of the cases so-called applying simple- doctrine. an holdings tool Such are effect abrogation jurisdiction fundamental rule force this its throughout entire that it is the history duty of to furnish employer his.

384

employee said As has been well and suitable tools. with safe say illogical “It and unreasonable Labatt: using ordinary merely, obligation care free from the master is many appliance simple tool” and to be furnished is because reject theory any hold that the fundamental courts appliances employer duty tools and to furnish safe simple complicated employee applies tools. and' alike to Oregon-Washington & 146 P Co., 243, R. N. 75 Ore v. Gekas 154 Co., 399, Line Railroad NC 970; Atlantic Coast Mercer v. Tex 127 742; Blanchard, CA, & v. Buchanan Gilder SE Kan Co., v. Harvester 1153; Fishburn International SW Chicago Neely al., R. et Co., Great 471; 138 P2d Western 670; Tex SW 972; Flinn, Hines v CA, Mo 14 SW2d CA, City Ry. supra; New Co., Airline Jacob v. Cole v. Seaboard any furnishing supra. kind, the master tool of York, “In safety ordinary for the servant is to use care bound Ry. P. 99 Tex Co., Antonio &A. it.” Drake v. San who uses supra, Oregon-Washington & N. Co., In R. 89 SW 407. Gekas the court said: provide duty ordinary care

“It to use to of master appliances, reasonably tools and and this his servant with safe regulates duty general with- rule of law which master’s is a appliances relating specific character the tools out and implies 'ordinary question. care’ care The term as in injury reasonably danger suggest prudent probable to a would they applies all in all of life in which man. It to men .walks required Ordinary care is in contact with others. come simple complex only furnishing The differ- of either tools. complex dangerous tools, an in the case of ence that, degree greater ordinarily prudent man use of care.” would a presented has to this court for determination No been case simple tool or con- the so-called doctrine invoked wherein presented has for deter- court, however, The had sidered. sought recovery had at least case wherein mination one by injuries a in what has caused defects been denominated for Ry. supra, simple N. Co., in Prefontaine v. G. Thus, tool. railway company brought employee for to recover suit injuries alleged defec- result of have been sustained pick by employee performance tive handle aon used employee pick purpose of his work. The used for the breaking pieces. chunks of coal into He testified that he worked days pick having split for several with handle, that he com- plained to the foreman and that the foreman told him that no pick promised extra supply handles were hand but newa possible. supplied. handle as soon as plaintiff quit The handle was not The pain injury work because of the to his hand. brought against railway injuries company He action for alleged negligence to have been sustained reason of the company failing reasonably proper to furnish safe and appliances perform tools and with which to work. The rail- way company negligence denied case was submitted to jury plaintiff. which returned the in favor of the verdict The appealed contending defendant to this court that the evidence negligence part did establish actionable on the of the defend- ant. supported by This court held that the verdict was the evi- judgment. dence and affirmedthe part selecting step in this case ho right given appliance

ladder. He ho select a tool or for the work. The ladder was furnished the defendant to be hanging used decorations the wire, and no other tool was made available such work. It was step generally not a short ladder such as is used around dwell- ings considerably longer. and offices. It Indeed, was so long place that the former owner was unable to it in the van in which certain were articles moved from Hiler’s warehouse. It possession had been in the the of defendant and used it for many years. During necessary it such time had been found to repair by renailing steps it fastening from time time to the or many them' with screws. How times this occurred the evidence does not it disclose nor does disclose the last time it was done. purpose being The ladder doing was furnished for the of in used particular plaintiff using the which work for was it at the time (the stage- director) the accident occurred. Mclver testified pavilion putting up that the ladder was sent to the be in to used especially paper the decorations the streamers. The defendant’s necessary plaintiff: representatives for the that it would knew height performing the ladder to such as to ascend his work paper at the wire the streamers to him to fasten to enable point feet above the floor. When the was some sixteen where wire plain- plaintiff stage the do the work the to the director asked for use in be furnished informed that a ladder would tiff was pavilion performing plaintiff arrived at the the the work. When July early morning the ladder found for the work 10th.he equipment .among delivered there for use that had the been reception. pavilion preparing the There the for the workers only plaintiff it and had never used ladder. The was this one property nothing except had it in the that he seen knew about Nothing Temple. to him was said room or cloak room in anything there or to indicate about condition ladder any testimony de- defect it. The officers was they were familiar with the fendant, however, indicate that general gathered their ex- ladder characteristics of years judgment perience throughout had formed and being- and was for the for which it was be used its fitness work Pierce, at the time of accident. used “flimsy, rickety, Potentate, that ladder was testified wobbly,” he told the on that after accident one the ladder so unsafe it never or two occasions that should pavilion stage all. Mclver, sent at have been out joints rickety, the ladder that (cid:127)director, testified top.” “wiggle you got that it near were loose and would when the ladder to the and who Pliler who donated defendant stage director it- time served as testified found neces- (cid:127)one steps, repair renailing sary fastening that is, the ladder light screws; that ladder construc- them with nails or steps wood; that he did not made of know when the soft tion last were renailed before accident. He in the ladder testified you got up if the ladder and moved it would around up sway; good get top reach “wasn’t over paint anything or four calcimine or of that sort three feet to any testimony that the ladder unsafe work. .was appearance anything in the that there does indicate ordinary inspection visual the ladder which from observation or any particular The indicate weakness. characteristics would officer) (and which the a former of the defendant men- officers testimony appear by would were not such as tioned ordinary they hardly Thus, observation. have visual would by merely wobbly; looking ladder that it ascertained at the joints squeaked you that were loose and when walked on it, top. wiggle you got and the when near ladder would Such indicate that the information the witnesses had statements through either been obtained use of the ladder or at least being observance of the ladder while it used others. testimony The of these that there witnesses show likeli- strong possibility, might or at least that there hood, be some attempt dangerous defect the ladder which it would make higher steps to use it in its then condition to ascend which necessary place would be to enable the worker to decorations testimony on the wire. The shows some of the witnesses considered the ladder unsafe. Yet there was no examination inspection by representatives any of the defendant or attempt up to check on the condition of the ladder before it was plaintiff pavilion. furnished to the for use at the The belong- recognized had never used the ladder. He a. ladder ing they kept to the defendant knew had it in the Temple naturally for the use of defendant. He would as- sume safe and that defendant would not have any furnished a which it ladder had reason to believe to be un- charged duty safe. The inspecting was not with the purpose finding the ladder for the hidden or latent defects. duty employer. p This was 1188; C. J. S. 4 Labatt’s p seq. plain- ed., Master 2d Servant, Sec 3800 et right tiff had the to assume that the defendant and its officers reasonably had used care due to furnish him with a safe ladder they and that would not furnish him with a ladder about the safety they any which right had reasonable doubt. He had a upon promised perform enter the labor which he had full reliance that the defendant and its executives exercised safety care belonging due for his and that the ladder they defendant which had furnished for his use was a safe and 388

proper supra; v. tool. Fishburn International Harvester Co., pp p 604-605; 1187, 35 Am seq.; Master and 56 Jur, Servant, CJS et p seq.; 4 and 2d ed 3802et Servant, Labatt’s Master DeMoss Ry. Co., 412, N. ND 272 510. 506, v. G. 67 NW 422, employee The are the which an assumes usual and ordi risks nary particular employment, risks of the but not which are risks Ry. employer’s negligence. to Co., due DeMoss v. G. N. supra; general pp “It rule that a servant 1161, 1165. 56 CJS arising negligence not of the master.” does assume risks from “Generally p 56 362. servant not assume 1161, CJS Sec does injury negligent the risk failure of the master to reasonably machinery, appliances tools, furnish him with or safe prosecution employed for the to 56 work he is do.” CJS p 1165, 364. Sec Ry. supra, Co.,

In this court said: DeMoss v. G. N. merely employee “The are the usual risks which the assumes particular ordinary employment, those risks risks his employment they due incident when are not to which are to the negligence. Wright, v. 202 the master’s N. R. Co. Louisville & ordinarily, They dangers are com Ala monly, 80 93. 255, So employ usually pertain to or are incident person anticipate reasonably prudent might which a ment negligence part danger on the do not include employer. Chicago, acts of (Tex App) &P. Smith 197 R. I. v. Civ R. Co. (Tex App) has the 222 1099. He affirmed in Com SW 614, SW proper employer right care. Fox will exercise assume Lehigh Valley 141 157. He is not R. A v. Co. Pa employer’s attributable assuming a risk that is treated as negligence plainly it is so observ it, he until becomes aware presumed and he have con it, he must be known able that complaint. . without . . tinues to work “ negligence ‘Extraordinary will the-master’s risks created recovery them, if the knows unless defeat a even servant help see danger he cannot and imminent that is so obvious understanding ing the circumstances fails under and he it, ordinarily prudent man.’ Strunke the care of an exercise p p at Payne, ND 272 NW 840.” 184 NC SE 582, 114 510. plaintiff’s injury defects in the ladder which caused were

The by ordinary not obvious and were not ascertainable observation. The who the ladder do not claim that from witnesses observed they step did or ascertain that the their observation could or see groove.” defective or that it loose and “turned in the step fall did not because broke but because picked up tilted. The Steenerson testified that witness when happened grabbed he ladder after accident ahold of “by up top” step it one towards the that he found it and you say loose; that he “wouldn’t it so loose could (and it” shake you but it was loose so tilt it back forth he could and demon- jury by this). step strated to the what he meant was still place only in and it was tip, after he took ahold of it that he found it but would that it was not loose so that the looseness would apparent by shaking plaintiff, become the ladder. The how- merely fastening ever, did more than look at the ladder. After top the brace at the to so as lock the ladder, raised it and placed legs it on four then its and shook it to see that it was solid. After examination and observation so made the con- proceeded cluded that the ladder safe to use and found doing, it to be safe for the work he was until he found neces- sary height step to ascend to the where the defective was en- countered. my opinion ample

In there was in evidence this case from jury plaintiff’s injuries which the could find that were the direct negligence; result of defendant’s that not guilty contributory negligence and- not did assume risk of injury. In I short, believe that the verdict is well sustained evidence. Judge, dissenting.

Broderick, District respectfully I desire dissent from the conclusion arrived at majority opinion. the Court in its While it is no doubt true as an abstract “Notwithstanding statement of law some rulings contrary, great weight in a few cases of au- thority portable stepladder is to effect that a is small simple appliance” tool or and it is also true that: “Where a simple tool or is in appliance construction and a defect therein special knowledge is employee discernible without skill or and the ap- employer qualified to detect the defect and as the is as well employee may resulting praise danger not therefrom, injury employer damages due for to such from his recover employer.”, is however rule that is unknown defect qualifications subject modifications which the to various majority into have taken consideration of the court not principle applied this case. That their decision of facts simple applicable even tools when or master of employer law knowledge of the unsafe and defective con- has actual employee simple and the servant or even tool does dition of any knowledge the unsafe or defective condition of not have appliance. tool majority holding are case the Court “The this In employer, statutory provision all that ‘An cases shall indem- employee nify for losses caused former’s want of 1943) applicable ordinary (Sec 34-0203 RCND care.’ employee employee gratuitous as well case of as an employer’s liability determining rule same reward, applies agree in of and I with that as the case master servant.” Syllabus majority No. 2 the of as set out in statement law opinion. testimony of A. H. Chief Rab- Pierce,

The uncontradicted Temple, stage Hiler, director and Kem B. former ban of L. Temple stage Kem Mclver, who testified was director of John conclusively accident, at the time of the show that the defendant they agents guilty negligence in were that its officersand plaintiff, gratuitous em- Prank who a Olson, furnished was ployee Temple, stepladder long, this foot of Kem with fourteen they in which was unsafe and defective condition at time stepladder they and that had knowl- furnished to edge that it in a defective unsafe condition fact was question. long prior for time in to the date of the accident testimony they knowledge fact further shows had they stepladder stepladder when such a'second hand was possession for at least fifteen it; received it been in their that had years prior during time had become out which' it accident, repaired prior repair, and that it had at once been least repaired had once the accident and been least date of rungs tightening the and nails in the -of the ladder. screws called Babban, as witness Pierce, Mr. A. H. Chief (Page 76 of the official and testified as follows: transcript.) reporter’s you your in to Mr. I ask whether or not Olson

Q will visits you hospital told him that at the on one or occasions this two never have out ladder was so unsafe should been sent pavilion at all?

A Yes. him that?

Q Yon told

A Yes. person Temple, was the Kem

Mr. Chief Babban of Pierce, as pre- charge general general temple of the of the activities in in paring general charge their events for various social reception preparations held on that was to be this position particular Pie the same occasion. would certainly if crew and Foreman on a construction General that a ladder or other Foreman an admission made General employee appliance condition, in a defective was furnished to an upon binding principal would be such an admission the ladder Babban, ease, this admission Chief plaintiff, in a condition when was furnished defective Temple binding knowledge on Kem and would show would be employer part of the that it aware of such defective on the jury perfect being right That the case the had condition. arriving consideration in at their take that admission into verdict right in- the case and would have to draw reasonable Temple ference from such admission officers of Kem prior knowledge the defective condition of the ladder The A. IP. Chief witness, Pierce, the accident. same Babban, page-187 as a witness for defendant and at called was transcript testified as follows: the official rickety way flimsy only it was a That A Well ladder. you it. can describe years of it 16

Q And was that the condition over those you it? knew years: At last ten

A least the you any repairs know whether or not were ever made Q Do on that ladder?

A that I of. Not know

In of the fact that he was called as a for the view witness opportunity attorney defendant defendant, for the had a full explain modify or the statement that he had made Mr. hospital, explana- in the but further modification, Olson no tion statement, was made and therefore stands as the testimony uncontradicted case, that ladder was condition Olson, defective at the time it was to Mr. furnished Temple, knowledge he, of which fact as an officerof the had full testimony jury justified and on that alone the would be arriv- ing guilty negligence. at the conclusion that the defendant was

L. B. Hiler was called aas for the Plaintiff and witness testified page transcript stage on that he had been director of Temple years; question Kem for fourteen that the ladder in lodge was 1941; obtained that it an old ladder they tightened time it; obtained that he had the screws rickety, nails; that it bad, was not too but it Mr. “as ago.” you got up Mclver said a while If around moved sway, it would it, etc. Q theWas ladder unsafe for that work? high,

A Yes, it was etc. you Q Do know whether or not all the cross were on braces the ladder ? they gone.

No, A not, were the bottom one was It was broken guess gone they 81) (Page I out. all the time it. had (cid:127) many years.' (Page 83) off brace was It awas second hand gave ladder when he it to us.

Mr. John Mclver was called as a witness for Plaintiff and position officially Stage testified that his known as the twenty-four my group Director. He “I have testified: men stage dining and we handle all room or ball room and elec- trical effects.” long you prior

Q been familiar How with the ladder 69) approximately? .(Page that time years. A Fifteen the condition of that ladder ?

Q What long it was what we call, A It had been nse for a time and rickety. testimony by Clyde

There Steenerson was also some one testifying he ladder, the unsafe of the but was to the condition condition after the He never ladder accident. had used prior it around in the time bnt said saw cloakroom Temple any special of the never made of it. but examination testimony negatives However, his in no manner or contradicts testimony of the witnesses had other who' seen and used prior ladder and knew accident of its defective condition.. testimony In view the uncontradicted there is conclusive proof rickety, that the ladder was defective old, weak, and un- safe at the time of the fact accident and was known to agents charge defendant, its officers work. It agents negli- therefore follows that the defendant and its were gent they neglected ordinary pro- in that to use care for the plaintiff. tection of the duty only provide proper appliances

“It is the master’s employees, ordinary for the use of his but also to exercise care keep appliances good repair.” duty provide proper appliances keep The master’s and to repair good delegated personal them in cannot be so as to avoid responsibility performance duty for the due of employee injury does not assume the risk of caused negligence, knowledge existing master’s where he had no danger. Ry. Meehan N. v. G. Co. 13 ND 432, 101 NW 183. simple application

“The tool doctrine has no where the tool injury inflicting being injured used another than especially being ordinary servant, where it is not used in the way, knowledge or where the master had actual of the defect employee' and the had not. Further it has been held that the ‘simple inapplicable tool doctrine’ is where the defect tool by inspection was not observable or discoverable such as a using reasonably expected workman it could to make.” App Ry. 360, 52 Ga Cowan, SE Co. v. Southern Corpus 763, Note 72. Juris 39 n application “Simple where master has no Tool doctrine employee knowledge had not. the defect and actual had (Note 72) 960; 206 P Randal Stolper 98, 120 Wash Arenson v. Smith, P v. Chas. 422, 675; 104 Stork Gerrick, Wash 176 v. Cooperage Ann 339. 841, 106 7 Cas 318, NW Co. 127 Wis age decay, might arising from or not be

“A ladder, defect in a expected inspection by as a workman is discoverable such might upon more careful examination. . . make, and be . fairly open jury to find that the de- And think it to the we might have been discovered had fective condition the round suitably by inspection inspected; perhaps, it such an been not, upon naturally given whose it, would to it workman as duty be lawfully might rely inspect, it was to not to and who work, duty, upon presumption performed its that the master reasonably inspection part but an on the of master as such upon necessary appliance would make that an which sure every time the servant life or limb he used was risk his reasonably Twombly 98 Electric, safe.” Consolidated Me v. LRA 551. 353, my opinion especially law

It is that the statement of is above applicable to where the evidence case, the facts this shows Temple calling upon tlie were in the habit of officers of its life who were not members from walks of accustomed to all stepladders carrying to use on the work, such such activities Temple. especially true in this This is case where is by any testimony an admitted uncontradicted whatsoever, fact, rickety, that the ladder old and had been in in and use lodge years, around at least fifteen second hand they especially it and so in ladder when obtained view of testimony Rabban that the ladder was defective and Chief they have been sent out there for the work never should were about to do. Phillip Carey Roofing Company Black,

In the case 340, said, 51 LRA NS Tenn SW Court general presumption inspect “The is that a master is bound to

395-; appliances'furnished tools or him to a and to workman, keepi repair. them in sufficient If or however, appliances! tools are there simple common is an tools, exception general j The presumption rule. such cases is servant is equally conversant simple with nature of such or common and: tools, is in as good master to discover defects position any tool therein. . . . doctrine simple foundation of assumption knowledge master servant equal. must be a presumption indulged Such cannot be where the master has actual notice where the defect, proof shows superior. is, matter knowledge is master as a If of factr tool which he cognisant employee furnishes a condition as to render vise the employee its to dangerous latter, the he injury will be- liable an sustained by the emr in the use such the ployee implement where is not of defect to the employee, known and is not a nature as such to be dis of covered observation which naturally would accompany v. L. & 11 Ry. 372, its use. Guthrie N. Lea 47 Co., Am Rep 286; Stolper Co., Stork v. Chas. 127 Cooperage Wis NW 318, 106 339; Ann 841, 7 Cas Mercer v. Atlantic Coast Line 153 Ry. Co., 742, 70 Ann 1002, NC SE 2 399, 1912A, Cas NCCA 118. In the - latter case it is held that apparently duty to master of care proper exercise to ordinary reasonably to his tools furnish servants to well applies simple complicated, tools, as as and to only dtity inspection rule is relaxed Al of thereafter. the master is not though required inspect simple to pre tools employee, to discover viously which furnished defects of using implements the employee such should be al aware, and no though inspection simple tool generally may be neces of at time it is delivered to an sary employee, the master yet if tool, such dangerous with a which he has furnishes actual defect of he knowledge is negligent. He should%not be permitted the servant risk expose such a particularly if defect might that it character be overlooked the servant.” In the case v. of Stork Charles Stolper Cooperage Co., supra, Supreme held: 2. Syllabus Court Wisconsin “The rule that a master is not for injuries' liable resulting in ‘very defects tools’ has simple no application where 396 employee defect n knowledge and actual master has not.”

has starting page exceptions on of the rule and its the discussion See page through going 843. the first column and 842 majority opin- by Judge Morris in the the cases cited Most of recognizes Michigan the so- and which are from Minnesota ion very “simple of Person late case In tool doctrine.” called by Judge the Court Morris, cited which is Okes, NW2d Court) (By (Syllabus 1.)’ held: under no simple a master is under which doctrine,

“The tool simple any, duty inspect if tools and defects, discover ordinarily with attended use which is instrumentalities application danger no thereof, has his servant and warn no knowledge and the servant the defect has where master character as not to be of such a the defect is not and where does ordinarily accompanying its use. from observation obvious (supra) Stolper Cooperage 339. Co., 7 Ann Cas Stork v. Charles page NW said Wis In Stork case Court at page above, the relaxa “. . As stated Ann 339: . 843,7 Cas liability duty rests on assumed the master’s tion of equality ability knowledge the defect com to discover application plained defect of which the to a of. It can have no actually cognizant, reasonable man, as a which, master is injury using likely appreciate to one result should likely implement, is neither known used, to be and which is employee character as to be obvious to such a to the nor of may accompany expected its use. that observation which negligence general stated is rule of as above In fully case the such knowingly negligently who and and the master effective, peril employee exposes the latter must re to a unknown to damage spond results.”- for the which Syllabus Okes) (5, 6) (Person 3. simple applicability to the instant tool doctrine “The of alleged depends knew on whether case defect of defendants knowledge,' possessing plaintiff and such used stool before question this the answer to her warn .If fact.

failed rule, the case does not come within affirmative, is negative if does. think the answer We the answer is in if negative. fact) (under . . . She testified must be “perfect she discarded condition” that the stool was already other than for mentioned, which was the reason it for unimpeached evidence therein. Her uncontradicted and a defect contrary.” to the unimpeached testi- In the case at bar the uncontradicted mony contrary, showing directly the evidence both knowledge part defective the ladder and the on the condition of employer. . In the case of Nichols v. 289 NW 291 Mich Bush, by majority opinion, which is also cited court its Supreme Michigan indicated that it would follow Court supra, same rule in the ease Okes, as stated of Person v. and the Stolper Cooperage supra. By case of Stork v. Chas. Co., refer- ring Syllabus we find it reads as follows: #8 against employers

“In an action household servant to re- injuries reviewing- cover for fall suffered from from ladder, appeal employers court on from verdict directed for was not required alleged to consider the effect of an em- admission ployers that ladder was unsafe where evidence failed to estab- lish that fall resulted from defective condition of ladder.” phase

In connection with that of the case the Court said: Syllabus (7, 8)

“We do not overlook the claim that the defendant Plarriet Bush stated to the after the accident: ‘Didn’t you accepted know that “unsafe”,’ which must be as true in contradictory testimony, view no and the direction of the against plaintiff. By verdict sought claim, is. negligence ground establish defendant’s on the that it anwas plaintiff’s part admission on that the ladder was unsafe and that knowledge defendants of this fact.' In view of the fore- going disposition, unnecessary however,- it is to consider this phase of the ease.” admissions condition the ladder unsafe unimpeached, unqualified in the case at bar are

defendants uncontradicted. As a matter of fact the defendants in their side of the case confirmed fact that ladder was unsafe. both, Michigan the fact that attention I to call desire the doctrine hold to which courts are courts and the Minnesota n indicate that cases these also certainly but tool, the simple the defects and employee knowledge if Master has n does if it is simple even a damages, liable the Master is not, that tool. 574, it 143, 573, Jurisprudence Pages

In 35 American modifi- various subject tool doctrine is that the simple stated where the recovery presented case for cations: a “Again did not know of the employee that whereas the evidence shows n defective condition of the did have tool, employer offending statement is quoted thereof.” This knowledge actual I. H. 138 P2d 471. case of Fishburn v. Co. P Holcombe, 633, v. Ry.

In the of Ft. Co. case Smith W. & held: 1237, LRA Court 1916F, defective and master has

“Where a tool simple becomes had no injured- and the actual notice of such servant defect, from the use defect, results injury of such knowledge the master is liable.” servant, such tool fellow In that and also the case of they case, case Stork quote which 113 Ga So Ry. Savannah Co. Pughsley, holds to the effect. same

In view the fact testi- undisputed, unimpeached mony the case shows that the defendant furnished plain- tiff on the stepladder, knowledge part with defective with same defective, defendant and agents its situation, opinion the law the writer is of applicable that the action ver- jury’s of the trial aside judge setting dict in favor of the and the of the defendant’s granting motion for a new law and not warranted trial, was contrary evidence; invaded the doing trial so judge jury as the trier of and that was an province facts, absolute abuse of discretion. ver- for which a different causes out the

Section 28-1902 sets and the only pur- trial granted, dict vacated and new may be case is as trial in this a new for the granting ported grounds viz: “The trial opinion, in its majority stated the Court granted ground for a court the motion new trial on the that the support evidence is insufficient verdict that the evidence' negligent does not show defendant was or that the contributory plaintiff negligence.” free from amplified explained However, the Trial Court that state- by saying ment that there whs no evidence to show that the any knowledge had defendant the defective ladder making inspec- the further statement that the made no reading transcript A of the ladder. of the tion clearly of the evidence testimony contrary. that the' indicates is to the I have testimony showing out the heretofore set that the defendant knowledge had of the defective ladder. With reference to the inspection that.the statement made no or test of the following excerpts official.reporter’s from the ladder, tran- script inspection shows that he did make an and test of the ladder:

Page 48. (cid:127) very that the ladder was

Q You know old ladder? testify to I A I could not that. had not it I used before. had seen it the cloakroom. you inspection

Q Did look over the ladder make an of it you up? at the time set it pulled

A I it to if it I shook see was solid and down the braces. you any inspection Q Did make further of it? except my thought

No, A I could what In see. own Imind it rigid enough to climb it. rungs Q How about the of the ladder ? got

A I I Those used until center were solid.

Page 50. you any rungs

Q noticed Had of the of the ladder weak or weakening anything?

A I had not. No, you inspection rungs

Q And made no of the of the ladder you already stepped? above where had already stepped. My

A Not above where I examination up using of the I it, ladder when'I it made sure set part I shook to be sure was balanced down, and center legs the floor. and all four testimony plain- accident, to the cause

Then as tiff as follows:

Page 11. get up. to I had occasion a little mentioned, And then as I A. , step higher and the turned me and fasten the on streamers, my tome lose balance. caused

Pa,ge 12. step step up and I other there

A took the turned When my lose balance and fall. caused me to EXAMINATION: CROSS long

Q there time? That ladder has been around for a presume A I it has. years many

Q For how ?

A That I would not know. by the

Q And the ladder needed various was used when organizations from time? Masonic time to- A I would not know. you

Q before? And as ladder had used up- I.just Á I saw it in cloakroom had not used it before. stairs. testimony plaintiff foregoing made an indicates the

As the inspection As to the ladder. whether and examination naturally inspection of the ladder as would not he made such duty upon given and whose it was it, workmen be to it might lawfully rely pre- inspect, on the who work, and duty certainly sumption performed that the was master question and taken into considera- fact be determined jury jury, that the took tion and must assumed arriving their doubt did, into and no fact consideration contributory negligence Questions and verdict this case. jury questions negligence to be determined are fact from case.- the evidence in

As the case of Pacific Railroad Co. stated Missouri Spangler, 140 F2d 917, jury -general to decide whether such observa-

“It for inspection employee reasonably practically as the tions or and expected been have to make the conditions and could situation danger. If it would have detected defect and the would not inspect contributory employee’s then the failure to Was not ' ' negligence.” fully supported by amply The verdict evidence and affirmatively négligent the'defendant shows'that contributory negligence, jury was free clearly undisputed found and was warranted evidence so ' testimony finding. being in such There uncontradicted step- was'guilty negligence furnishing defendant aof knowledge ladder to the with of the fact that it was plainly jury, jury one defective; issue and the judge.- By attempting and not the trial alone, to determine do province jury. jury invading so was exclusive-judge credibility'of sole the-witnesses-and givén testimony. weight of'the tobe to their alleged grounds by With reference-to-the the trial stated setting court as a basis for aside the verdict in this case and granting quote prior I trial, a new desire a decision of Hyland, this court in the case of 56 ND Kohlman v. 219 772, , NW 228. In that this court case- held ' Syllabus appellate granting 1. “In an court-orders- new trials upon denying stand a firmer than orders foundation a new trial.” Syllabus grounds 1. “A motion a trial new on the in- for sufficiency support the evidence to the verdict invoices the judge, 'legal discretion the trial a b'Ut discretion'is' discre- - justice, tion to be exercised in the' interests and -where the granted, appea'r alleged ground motion is it must cause or n ' had an actual existence.” Syllabus 3.' . . . “Since facts from"which inference negligent may driving upon conflicting be drawn do rest clearly evidence, and since that warranted, is one is inference upon ruling in Gourt, a trial, motion a new was not'exer- for cising discretionary power grant a error the mo- tion.” precise

It seems me-that this is exact situation testimony to, the defendant’s in this case. obtains testimony conflicting negligence and the infer- on does not rest clearly by and no donbt was drawn drawn, is ence one subject very jury. of this There is a able discussion by opinion concurred in case, Birdzell in written Justice this case, In that Nuessle and Justice Christianson. Chief Justice commencing page said, 56 North court Dakota, on 777 of foundation granting on a firmer trials new stand “Orders them, denying (citing appellate numerous orders an than court ground cases), insuffi trial on for a new A motion support ciency nevertheless, in verdict, of the evidence legal and court; a but this is of the trial vokes the discretion arbitrary in an court was said this As not an early discretion. provision authorizing statutory referring case, (Braithwaite discretionary grounds granting of new trials on clearly 419): “This indicates 49 NW 64, 2 ND Aiken, 57, v. grants judge act, not arbi new trial must that the trial who legal ground trarily, showing upon for a trial.” new facts but many supra, as well as are the cases to the same effect And, guide Perhaps cited. best that need not be others determining appellate the trial court whether or not court in denying granting new trial on a motion for has erred suggested discretionary ground case Colorado 20 P P. R. Colo Denver, P. & Co. approval S. Clifford Spelling, (partially quoted page 1in New with may certainly 237): App. exercise & “Trial courts Tr. Pr. Par. granting when trials, new discre discretion a reasonable applicants. tionary grounds It are relied exist and concerning practice that, the rule us, however, seems to if of by appellee’s judicial contended be broad as discretion for authorizing appeal order such an counsel, a statute from judicial practical discretion the exercise effect, is little of for give to it letter. In order reasonable it dead render would rulings required make correct be to must effect, trial courts ground application legal propositions. is in the Where support sufficiency verdict; that the ver the to of the evidence unjust weight it and against evidence; that is dict is inequitable, degree and the like, reasonable ... of dis- deny ques- cretion exists to allow a new trial; and when the application ruling involved are tions close, not court should be interfered with. On the other hand, if the ground of motion relied on does not in fact exist, or does not legal ground necessity for constitute a new or the trial, application applicant’s negligence, is the result of the ruling be should or the denied, motion held be erroneous. grant “The discretion vested trial court to or refuse a arbitrary general new trial neither an nor a is discretion. It is theory judge having that the based on parties, who tries a case, opportunity counsel, their witnesses and before him, with during their demeanor and observe conduct the trial, occurring during progress likely note all incidents its to affect qualified judge the result is better thereof, whether a fair justice appel- had, trial been has substantial than done, legislative assembly passed late tribunal. But that the the fact giving right appeal law such orders indicates a purpose upon rulings subject application to restrict the legal principles. general stronger pre- rule, “The so often that a announced, sumption granting, deny- favor of obtains in an order than one urged present ing, strong a new trial, is case as a reason why ruling should not be This rule should also disturbed.. ground be limited to wherein the cases on which the new trial granted legal ground constitutes a for such order, and the alleged have an actual causes existence.”

It was said Lord in Rex Wilkes, Mansfield 4 Burr. Reprint, Eng 327-334: applied justice, “But discretion when to a court of means guided governed by sound discretion It law. must be rule arbitrary, vague humor; must not but fanciful; legal regular.” App. Hayne, & ed. Par New Rev. 289. Tr. the trial court should be exercised in all

The discretion of justice appears judge and where it in the interest cases weight against evidence verdict 404 v. ND 566, to set aside. State Stepp, 48 185 duty

imperative 610; 49 ND NW Weber, Kansas P. 812; 325, 191 State v. R. NW 3 Kunkel, 145, Kan Am Cas 412. do not Neg mean,” 17 “We Co. v. case, 172, Brewer in Kansas “that says supra, page Justice in all substitute his own cases for judgment judgment he is to their province fact; for it is settle of jury, questions of or that differ is'nearly balanced, and when evidence is such come naturally' fairly ent minds to different conclu would right he has no to disturb thereon, findings jury, sions incline the other although judgment way. own him In might words, the óf the is to finding jury upheld by other him as mere doubts of against any its correctness. But when his judg ment tells him it is wrong, mistake, whether from or prej udice, or other have cause, erred, and found jury against the fair preponderance of the then no evidence, duty is more that of imperative verdict, than aside setting remanding jury.” another question to to exercise discretion that is within failure “While for reversal, exercise is ground the court to of wrong power exercise, particularly where, as so, here, discre equally ful is appealable rendered statute. Olson v. orders are tionary test, “A NW 655. what is within 22 ND Riddle, ,the been suggested question, has a court May discretion If way? either then point not, decide the court properly If there is no latitude for exercise. no discretion to there is power it cannot be. said dis of the power, exercise Rev. -New & ed. Par 289. These Hayne, App. Tr. cretionary.” this state in recognition have found general long principles to Martin Aiken, v. v. supra, line cases from Braithwaite .In the these light principles 55 ND 213 NW Parkins, 574 us to determine to examine the record before compelled we are the motion for in granting the trial court whether erred trial.” new Court the Supreme decision the same effect

To NW2d 560, McCarthy Thompson, case of Wisconsin 713. 2 NW2d Strasser, Beattie v. two: number See syllabus 405 by judge prompting- forth trial reasons set as him “Where granting plaintiff order trial make new after for verdict de- by judge not evidence, were warranted the- fendants, trial Supreme appeal and abused his discretion Court on re- would order and remand the cause with verse directions to reinstate judgment enter for the verdict and defendants.” (Minnesota) also the case De v. Parten See of Vere 23 NW2d Syllabus 584 2. only

“Where verdict is the one warranted under the law and charge in ground evidence, error and misconduct of counsel . . . are harmless not for new trial. Pappas,

In the case of Gordon v. 34 Minn., NW2d Supreme Syllabus Court Minnesota 4: held, right

“If verdict is aas there law, matter will be no reversal ground ground on of erroneous instructions nor on of erroneous rulings, rulings if those do not affect the correctness of the verdict.”

Syllabus 5: right

“Where verdict for as a matter of law, any, charge relating liability if error, of defendant was ground not trial.” for new

This any upon not case where there or claim evidence part of the defendant that the verdict is excessive or that by passion prejudice. it was any arrived or If there was jury liability error the instructions to the defendant in this case it was error in favor the defendant prejudicial plaintiff. many including cases,

As stated court in this the cases of Wright, Co., Horton v. Barrett & 43 ND Stilwell 114, 174 NW r 67, and Tail v. ND Bank, Otter Powe Co. Von 497, NW2d stability Supreme there be should some to decisions of the they subject Court and not should to constant fluctuation. If principles procedure of law announced the court and syllab'us set out in numbers and three in two the case of Kohlman Hyland, supra, guidance attorneys judges, for the and trial applicable were sound law and were to the facts in that case, they equally applicable are facts the ease at bar. jury question determine fact for whether

It negligence, constituted and its officers the defendant the act of jury question for to determine of fact also a and was any contributory negligence not there was whether or part of the defendant. alleged grounds trial court reasons that the

One of granting a setting new trial the verdict assigned aside free does show evidence upon contributory negligence. the burden is course Of , contributory negligence. prove allege The trial defendant to assumption acting evidently the that was under court prove free con upon that he was the incumbent Twombly tributory v. negligence. in of Con the case As stated supra, the 551, 64 LRA Co., 353, 98 Me Electric solidated question dis in the ladder could not the defects of whether or reason would be an examination as the covered ably expected matter for was a make the circumstances under jury That the evidence in case. to determine from might upon certainly question men reasonable of fact which authority province to invade the and the trial no differ court had jury jury judgment that of the of or to substitute his question. reviewing in Supreme in the record an action at Court “The Presumably weigh may evidence. conflicts not resolve law action at law are resolved in an facts controverted all jury’s findings, party. A jury based on in of successful favor conflicting law, at will not be disturbed on an action evidence in sufficiency, clearly wrong. testing appeal In unless support it must be considered in the the verdict, .evidence any party, light contro- the successful most favorable given in and he resolved must be favor, verted fact must be any advantage inference can be drawn therefrom. reviewing permissible the record It for this court is not weigh the evidence.” Bolio action at law to resolve or v. Scholting, 41 NW2d 913. very Supreme of this

In recent Court State decision page NW2d Jacobs, the case of Grant held: court jurors judges questions of all

“The were the of fact jury belongs duty weighing To the case. evidence determining credibility instructions and under Court’s used, judge correctly the witnesses. trial ref to invade jury.” province of the Ry. Co., In the case of v. Northern Pacific Schnell 71 ND 369, granting said 56, this court that while the NW2d a new trial judge, they rests in the sound discretion the trial further legal said such discretion is a discretion to be exercised in justice, appears party if it making the interests of prob motion has not made a case and there is no reasonable ability that on granting a new trial can make a an order case, trial new will be sustained. The court further said in that ease:

“(4) establishing contributory negli- Of course burden of gence in cases such instant case is on the'defendant.” contributory negligence

“As to whether or not there is is ordi- narily jury. of fact matter to be determined It is only when the evidence is such that reasonable minds must conclude that the did not act with due care for his own safety question jury.” ceases be one

In the case of Gunder v. 51 ND Feland, 200 785, NW 909, opinion Judge Supreme Nuessle, the Court of North Dakota held: might

“Where the evidence is conflict and reasonable men draw different conclusions therefrom neither the verdict of the jury on evidence, based nor the order of the such trial court denying appeal a motion for a new trial will be disturbed on ground when the sole attack is that the evidence is insufficient to sustain verdict.”

The Court further said:

“However, for the fact, made, the issue of as thus deter- jury. They saw, heard, of the as well as the witnesses mination say lay, who testified. It was for them where truth every presumption their verdict comes clothed to this court with 408 Wiper, Thomp ND 193, 157 592; 33 Erickson v. NW favor. its 21; ND 159 NW Jensen v. 503, Clausen, 34 34 ND Scott,

son v. 30. evidence is . . Where conflict and 159 NW . 637, might different therefrom, men draw conclusions reasonable this jury appeal neither verdict court on will disturb based denying nor the trial court evidence order a mo ground new trial the sole of attack for a where is that tion evidence is insufficient to sustain verdict. Grewer v. Shafer, 596, ND 197 NW and cases cited.” 672, Ry. case the recent of Ferderer P. ante Co., In N. 169, v. that, court held 217, NW2d sufficiency finding

“Where evidence to warrant .the challenged negligence by jury is all reasonable intend- ments insofar as the evidence is concerned must be resolved in the verdict.” favor of opinion: in his Justice Nuessle states “The

Chief established rule in-this state that whether a motion for new trial shall largely granted discretionary or denied is be with the' trial Judge, án'd unless there is a manifest abuse of discretion on his part, denying it will not his order be disturbed. And this is particularly granted. true when trial is a new In fact in some jurisdictions granting appealable.” 'new order á trial is not may certainly bearing That last statement but it no has true, of in In the the situation this case this state. bn case of Hyland, 56 ND this Kohlman NW court in its opinion, “A concurred in Chief Justice held: Nuessle, motion grounds insufficiency for a trial on the new evidence judge, support the trial a verdict the discretion of but invokes legal to be exercised interests the discretion is discretion appear granted, justice, must the motion' is where alleged ground existence.” cause or has an actual say: “It seems to went*on to further in that case The Court judicial concerning practice rule of if the that, us, however, (or by appellee’s counsel for as as contended be broad discretion case) author- a statute Judge in this Nuessle for as contended

409 izing appeal practical an an from such order-is of-little effect, -judicial for the exercise discretion-would render a- it dead - give In letter. order reasonable Trial must- Courts effect required rulings- legal propositions.” be to make correct “The grant discretion vested court to a new trial trial refuse arbitrary general is neither an nor a discretion.” . -. . “But legislative- assembly passed giving the right a law fact appeal, purpose such order indicates a to..restrict rulings-upon subject application legal, pr.in-' to. the should, ciples.” . . . .rule “This also.be limited to cases wherein ground granted, on ivhich the new -trial was constituted a legal ground alleged such order- and- the causes .have applied actual existence.” discretion, when .“-But a court of justice, guided by means gov- sound'.discretion It must be law.. erned rule NOT-BY HUMOR; IT MUST NOT BE ARBI- vague legal regular.” TRARY, and FANCIFUL;,-but opinion: The Chief Justice further states- in his “The Plain organization.-. tiff was a member- of the defendant He-volun n (cid:127) acting compulsion.” teered his- He was services. under no Of testimony lodge course the of the «officersof the shows that he legal in the not' a volunteer sense. He- was asked Lodge-to Chief Rabban of assist with the work, and-was Stage-Director’s in-doing a member ciew In work. Creamery the case of Hitchcock v. Arctic Co., 170 Iowa 352, Supreme quoted 150 731, NW the Court of Iowa from the case of Johnson v. Ashland Water Co., 553, Wis NW Rep Am St : as follows allegations complaint; “Under was en- gaged request defendant’s work at'the of the man in although may charge the'work; and,- said that his em- ployment temporary purpose, for mere and that expecting any pay-for was not the work done,-and in - employment voluntary, being that sense the still, employment request defendant’s at the of its servant or fore- trespasser, time-being, not a man, was and he was for the protec- the servant defendant, to -the same .entitled ' (cid:127) any tion other servant of defendant.”" majority opinion holds that under the circumstances in The liability applies “The same rule of bar, as case the The Chief Justice has concurred and servant.” of master case principle of law. that opinion, memorandum as in his one stated, trial court The plain- granting grounds trial, the new alleged for the of contributory negli- proven free from was had not tiff using the ladder before it. Of not test he did gence, because Judge pointed and as Chris- out, have heretofore Ias course, testimony opinion, clearly the' shows has shown tianson using Judge the ladder before it and a test of that he did make using plain- opinion, the ladder, “Before states, in his Nuessle “If the condition of the lad- states, further He it.” tested tiff a on examination as him such reasona- discernible to as der was using give person it before as it bly prudent it, would was to liability then-there'can be no any defendant, of the officers part.” plaintiff negligence . . “The the defendant's . zany.” whether or not the condition of course, Of was no plaintiff, on such examination as discernible was ladder (or expected to make under circumstances he would as give it), using reasonably prudent it before man would a corporation, any of the defendant of the officers it was by question court, be determined this not to or fact, even question judge, of fact to be determined but trial jury. evidently question jury determined fact province not within this favor of judgment judg- substitute its trial court to for the or the court point, invading jury as that would be: on that ment “zany” jury. province Whether a. “zany” change applicable does not law case. injury not assume the risk of caused He did master’s furnishing knowledge negligence him a defective ladder with that was defective. Company, R.

In case of Finch W. Roach Mich Supreme page Michigan, 598, 295 327 the NW at Court of way, legged step in a which, case involved three ladder only eight high, feet said: impressed are much with defendant’s claim

(10-12). “We the verdict the ladder despite jury, tipping that, own but plaintiff’s carelessness, we are resulted con to hold that issue was submitted properly strained to province judges our as determine It whether jury. at verdict, this our in point there is room for ' n end, must even though as triers quiry we facts of reach a impelled contrary tjie would be conclusion. From n evidence there was latent experts of defect construction the ladder supplied plaintiff, toe cannot as say of a matter law circumstances were such the plain of to anticipate was bound or discover there was or might.be tiff in the short time any such he was to use the article. At defect least there was room for the to find that the jury .plaintiff exer cised the of of degree required care him for own safety. Etel P Grub, 311, v. 157 Wash 288 The 931. cases of v. Kelly 262 356, Mich 900 Brown, NW and v. Bush, Nichols 291 Mich not 473, 219, NW do support contention that defendant’s plaintiff was contributorily negligent as a matter laiv. In of neither case any proof was there on. the negligence part of of in supplying an improperly designed or of o.ut defendant repair ladder. Where there is such evidence neg of defendant’s ligence, the circumstances are such that are the.infirmities not readily discernble, question the users contributory of negligence may properly be jury.” submitted

In I desire to passing, point out that the case of Nichols Bush, supra, is one of the main cited by casés Judge Morris in the majority as opinion supporting opinion, which, under the evidence in this case, applicable.

In the case of Florence v. Otter Tail Power Bagg Co., 70 ND 704, 297 NW court, this in an opinion by Burr, con- Judge curred in by Chief Justice Nuessle and Justice Christianson Syllabus held: No. “The defense of contributory negligence is an affirmative defense presupposes negligence on the part of the defendant.” The Court in that case said:

“But the problem in the case bar is not as simple ap- it,

pellant contributory negligence assumes it be, assumes appellant proceeds theory of Tbe as matter law. .on tbe -tbe conclusively contributory that there evidence shows was such negligence part plaintiff as.precludes recovery. her on..the assumption, negligence part of course, This on the admits negligence appellant, .as would entitle to re- negligence.. her cover unless own so contributed to the collision prevent recovering. negligence as to her from of the de- having duty jury established, fendant been carefully scan the actions and see un- whether, pommon der the the case law and under the rules sense prudence, and Common she could have avoided the accident.” many cases.) (citing North Dakota

In view of the conclusions that I have reached in this case my opinion’ of the Trial Order Court should and the cause reversed should be remanded with directions to judgment plain- reinstate the verdict and enter in favor of the- n tiff. [File 7171.] No. Appellant CREDIT CORPORATION,

COMMERCIAL DASSENKO, Ed. Dassenko, JACK William Dassenko, doing Respondents. Brothers, business as Dassenko

(43 299) NW2d

Case Details

Case Name: Olson v. Kem Temple, Ancient Arabic Order

Court Name: North Dakota Supreme Court

Date Published: Jun 17, 1950

Citation: 43 N.W.2d 385

Docket Number: File 7157

Court Abbreviation: N.D.