*1 given by plain- struction the trial court was more favorable entitled, tiff than that to which he was and therefore he cannot complain. opinion Otherwise I concur and the result reached.
PLATT, MEIER, Respondent Appellant
(153 404) N.W.2d (File 1967) Opinion No. 10328. filed October *2 Mueller, Mueller, Fourche, Overpeck, Hamblin & Walter Belle plaintiff respondent. for Simmons, McCullen, Foye, Rapid
Bangs, E. Butler & Thomas Deadwood, City, Hayes, appellant. Charles R. for defendant BIEGELMEIER, Judge. injuries actor or
Plaintiff sues for received as a volunteer Play produced super Passion defendant. The facts appeal generally ap- issues involved in this and some dissenting except pear opinion for some details of opinion. De- which will be in the course of the evidence added seasonably in much detail fendant moved a directed verdict grounds plaintiff law on the failed to establish matter of negligent failing provide area that defendant was safe fence, proximate or erect a or that cause failure thereof was the injuries; thereof; plaintiff's assumed the risk her were caused of fellow servants negligence. contributory and her own motion This and one for judgment v., plaintiff, n. o. made after a verdict assigns argues appeal denied. Plaintiff's and the brief that such denials were erroneous. being gratuitous undisputed plaintiff employee,
It awas provisions Compensa she is excluded from the of the Workmen's Law, Schmeling Jorgensen, tion 84 N.W.2d subject party any provisions. neither of its defenses *3 negligence, contributory assumption of of risk and the fellow Schmeling Jorgensen, servant rule are available to defendant. Eggers, 528; supra; Stoner v. 35 N.W.2d Servant, Master and 334. § uncertainty
There seems to be confusion of some and the charged only complaint in this claimed action. The negli- proximate injury "the cause of Plaintiff's was Defendant's gence failing provide pageant to a safe area for said and fail- ing guard guardrail."1 to said area with suitable fence or Plain- tiff's occurred in the crucifixion scene as she and other screaming, running participants yelling path, and down the topography physical aspects so the will and of the area be de- standing sequence. scribed in that on Plaintiff testified she was a higher grassy plateau area on the lower in front of the crucifixion during plateau grassy appears that scene. This area to be smooth wide; top proceeds and level at down the and over ten feet it along edge testimony the of the hill on to in the what is referred however, eight "path", appears as a it wide to be at least feet slope with the usual cut of the bank the left side and a 45° right side; right roughly hill on the it then makes a U-turn to the large open space with a on the outside of the turn to accommo- guards participants permit date to the and Roman on horses plaintiff’s guardrail negli- 1. The lack a brief of evidence of is listed as one basis path plaintiff gence. K, railing along Ex. the introduced in evidence a shows picture accident, railing after the where but fell. The was and taken installed objection admissibility presented. question 65A made, as was the its is not jury C.J.S. Negligence Though disregard im- 225. the court instructed the to provement, predict. its effect on is not difficult to changes go up The surface hill. procession leave the along gravel proceeds and down below at this to U-turn area, slope path mentioned. The grassy described side the ap- is not clear —it plateau to the U-turn from lower distance of 20 30 feet. or pears over distance to be a five-foot decline steps 15 or 20 she moved about further on cue Plaintiff testified go grassy plateau toward U-turn area to down over slope grassy above the rocks this area was near side of undergrowth boys down ran into her. She fell the two when eight along path on the slope feet seven this edge edge moving path By of the inside the U-turn. edge thereby slope. put of the herself on the she had also path built-in this the hill On the one side of been, guarded wall; then, nor it ever the outside was not had railing. and condition a fence or On the construction plaintiff's plateau, admits it brief observing apparent anyone the area and it was
"was equally this there Plaintiff. As to fact observable knowledge superior part of either was no thereof on the however, That, is- Plaintiff or is not the the Defendant. sue."2 knowledge plaintiff's compels
The evidence conclusion as *4 railing no there was fence or she testified: * * * * * * "Q you participated in the Gol-
gotha railing knowing Hill scene there was no * * * "A Oh, I'd never seen it. [*] * [*] I had no reason (a dangerous situation)." it was believe plaintiff’s proximate Cause” 2. Later brief title of “Proximate claims: “The under part on cause of the Plaintiff herein to the failure the of the to the was due * * * place only a it was reasonable Defendant furnish Plaintiff safe the with required fence, along railing, ledge that plateau a the a the barrier of some kind be * * * * * * prevented a occur- barrier would have the accident from * * * duty ring. The Defendant liable on thereof.” failed his and is account says: jury by Again it was not to have “the their verdict found prevent plateau just some kind of barrier on the an incident.” If we were to such accept ap- proximate judgment cause, this be for defendant for reasons would pearing opinion negligence. later in this did not constitute 14 dangerous spot. By plain- "it not"
Defendant also testified was
a
perfor-
part in over 250
tiff's own admissions she had taken
railing
years
was no
mances
some 24 to 25
and knew there
along
path.
Plaintiff is
her own statements and
bound
stronger
testimony
cannot make a
her own
case than
establishes.
Robinson,
547,
Ford v.
76 S.D.
It is his with of the master to furnish servant Eg reasonably place safe to work. We have so held. Stoner v. gers, Schmeling Jorgensen, 8, 16, supra, also v. 77 S.D. 84 N.W.2d 558, 563, Co., 142, Lampert and Voet v. S.D. 15 N.W.2d Lumber 70 579, phrase reasonably place"; which uses the "a Olson safe A.A.O.M.S., 385; Temple, 365, Kem 77 N.D. 43 N.W.2d and 35 Am.Jur., Servant, Master and Other courts are 138 and 183. §§ accord, Servant, 35 Master That 183.3 has § recovery paid been held to be the basis of for a domestic em 410, ployee, 377, Clotsworthy, Gordon v. 257 P.2d Colo. A.L.R.2d and others. See also the annotation in 49 A.L.R.2d 320, footnote 6.
A master cannot be held liable for failure to furnish reasonably place safe to work if the condition or so-called dan ger eyes is so obvious and is before the servant's to such an intelligence ordinary extent that he must know the use of danger possible Eggers, supra, that confronts him. Stoner v. Barrick, holding and Ecklund v. 82 S.D. 144N.W.2d 605. Our guardrail existed, is the lack of was a condition that was not the proximate injuries, plaintiff's by voluntarily cause of and that continuing part pageant accepted to take she or assumed guardrail. injury the risk of from the lack of In this sense as sumption recovery of risk bars because there was no break of duty, master, part the master's and, hence, actionable fault Wagner,
no cause of action. Maher v.
3. The trial court instructed it was safe the make employee required where render services failure thereof ren- sen- employer dered the tence of liable. Plaintiff states it was taken verbatim from first qualifies 35 Am.Jur., Servant, 183; Master however the next sentence *5 duty by “reasonably place this safe standard. work” instruction therefore except erroneous, but we do not reach that claim of error far so as to deter- sufficiency mine the standard of care and the evidence to conform to it as matter of Taw. Restatement,, Second, with Agency, to be in accord seems these conclusions. 492. General Rule
"§ performed care is his duties of
"A master who has working provide which are rea- conditions either to subservants, sonably con- safe for his servants sidering employment, or warn the nature of the which he should them of risks of unsafe conditions they may by due realize the exercise of not discover care." Enterprise 499. Risks Inherent
"§ preformed "A of care master who has his duties by not liable to a servant harmed a risk incident the nature of the work." Assumption 521. Servant's of Risk
"§ agreement "In the absence of a statute or an contrary, a master is not liable to a servant premises harm caused the unsafe state of the servant, employment, other conditions of the if the knowledge understanding with of the facts and risks, voluntarily enters or continues in the em- ployment." it, only clarify
Comments under this section not but proof plaintiff: burden
"Comment: * * * Although
"a. used a master has neither premises care to make the safe nor care to warn his em- safe, although ployees are not he has employees reason to believe know of the lack 'safety, employees he is not liable to who in fact know (un- danger of the conditions and realize the therefrom applicable) less sections 522-524 not here *6 16 * * * * * * may at the exist
"c. risk beginning may employment arise subse- or it changed quently conditions. because maintaining proof. an action Burden of In "d. failing against provide conditions of safe- a master allege thereby prove, ty, must harmed a servant only that the that master had reason to believe not the unsafe, also that the servant had conditions were but * * *" knowledge thereof. part play4 voluntarily chose to continue in this Plaintiff agree in her brief the construction we with the statement including guardrailing, plateau, the lack of and condition of the upon which a conclusion was not an issue to base negligent respect. in that guardrail negligence, Eliminating lack of as injuries, plaintiff's only proximate cause of leaves therefore the boys. the two This was the im that she was knocked down injuries proximate and thus cause. mediate cause of her Schmeling Jorgensen, 84 N.W.2d 564. It is engaged undisputed cast all were members of the employment and so fellow servants. The com same common injuries negligence caused mon law defense that the were being defendant, employee of a fellow servant or available gives against such rise to no cause of action the em injured. ployer by employee and Ser an so Master vant, doctrine stated text 334. The fellow servant to be: is, perhaps, law of and ser-
"There in the master vant, firmly common no more established rule than pageant plaintiff, participant Yanzick, a friend 4. Mrs. another and. started dropped Golgotha, coming bridge but to the with her on the march to went around behind the below, out before stop apparently Some tomb marchers free to do. points. path, some on the some behind tomb and some at various other liability employer one which from to one absolves engaged employment in his incurred or suf- negligence, solely fered as the careless- result of ness, or misconduct who are in the service of others engaged employer and who common are the same *7 general injured employment employee." or as the Restatement, Second, Agency, in as: announces the rule § * * *
"A master is liable not to a servant who * * * injured solely by is of a fel- ** *" low servant subject being exceptions applicable liability to some not —one non-delegable non-delegable of a master duties. These duties Am.Jur., Servant, explained are in later sections in 35 Master and page Title under C on 435 of the cited Restatement. liability latter indicates master incurs if he does not use care working keep reasonably safe, the servants' conditions or if employs purpose, those he for such do not use such care working keep reasonably However, conditions safe. hav- ing work, furnished a appliances, safe suitable or tools etc., negligent employer performance not is liable of negligent operative transitory employee details or the act of an proper Servant, in of the use tool. See 35 Master 358, appears 359 and 360. A similar statement §§ in Com- a, ment 492 of the cited Restatement which states the effect § 492, general of (§ the two sections fellow servant rule and § rule) negli- employer is that an is "not liable to a servant for the gence operative of fellow servants details of the business". A similar section in the employer Restatement relieves liability: Dangers Transitory 500.
"§ working liability "The master's for unsafe conditions dangerous temporary does not extend to conditions of which per- the conduct of fellow servants operative formance of details of the work the sole responsible cause." f, exemption
Again from lia- is found Comment under § intentionally fails to neglectfully or bility "if the master even duty, who be- a servant his perform would be what otherwise ordinarily dangerous employment condition of a comes aware thereby 521." suffered. See for harm of action has no cause may from defendant as her in- not recover Plaintiff therefore juries by fellow servants. were caused liable, be assert should contends defendant
Plaintiff know, pushing, ing knew, about did not and defendant he running plateau younger persons and did on the bumping and care the evidence We have examined thereof. not warn only knew conclusion fully come to the and have gum "laughed complaints youngsters or chew sometimes * * * to"; they misbehaved, they told not were below, people" not on Cru- "pushing scenes but other were running Hill, him word had come to cifixion *8 years straight path, yet in 25 hill instead of on down the knocking anybody complaint down. had a he never by plaintiff with of a conversation court admitted evidence daughter told her his accident in which he after defendant stated) (at run into and stumbled a few not had been a time admissible, Assuming did not fasten steps. was this evidence it liability held sufficient for either of two reasons. If on defendant elicited, knowledge charge limited facts with of the defendant to charge knowledge to him with was insufficient5 we conclude it being resulting people knocked down. If there was conduct charge purpose defendant with know- latter sufficient for the figure edge was the central and actor conduct when he of this play, part of the crowd or of then the climax knowledge chargeable its and as- with of activities was mob dangers many In times she involved. the risks and sumed mingled part play with and was a she had taken had running, screaming yell- participants part who were of the supports testimony contention is: this 5. Plaintiff’s participated particular you July scene, “Q 11th, 1963, in this had Prior ever when you anyone anyone pushed you fell? falling in area where observed No, “A I haven’t. complaints anyone any day you making to Mr. heard of “Q Prior had ever this particular area? dangerousness of this Meier about my “A Not recollection.”
19 ing.6 railing applies What said of of likewise was the lack j, Restatement, Second, Agency, this Comment conduct. § states:
"j. working ser- Defenses.....A with other servant incompetent vants he or too few in whom knows to be against ordinarily action number has no cause of 521." master if is hurt because of this. See he § knowledge equal She 'she had what was was where or better (see occurring years than Master and Servant, 128) etc., pushing, and if to con there was she chose part play voluntary part.7 tinue in this her which chargeable knowledge area, She is with the condition of e., railing, past i. that it cast had and of conduct of the ignorance and will not be heard to claim either. This was not unanticipated present Nep unforeseen situation or conduct Randall, stad v. 152 N.W.2d which was held recovery to be assumption no bar to under the doctrine. risk judgment denying The trial court erred in the motion for judgment n. o. v. and the is therefore reversed with instructions judgment to enter for defendant. RENTTO, JJ„
ROBERTS and concur.
HANSON, J., dissents. J.,
HOMEYER, P. concurs in dissent.
HANSON, Judge (dissenting). *9 damages This for action personal the result is of Platt, by plaintiff, acting sustained Grace M. while super as in the Play. defendant, crucifixion scene of the Passion The 6. Plaintiff testified: * * go * screaming, * running * * running, “we you the down hill. move shouting * * * lights Well, the place down hill. the are turned off all over the lightning flashing running, screaming. and thunder, then the starts start as we And yelling, working * * * everybody everybody up and and an excitement.- and trying get everybody's always there at and I once have it real taken slow * * * around the first curve and then run scream and with the rest of them. Do I know it? Yes." 7. See Note 3. Meier, play portrays and the Christus is of the owner
Josef $18,000 productions. of returned a verdict all its The grounds appeals. of defendant As re- favor and (2) alleges (1) evidence, Insufficiency Improper of he the versal (4) (3) instructions, improper and Miscon- Admission of evidence duct of counsel. days Play portrays, of the Passion the last life
The seven Dakota, Spearfish, in 1938 at South of Christ. It established owner, manager, now who is its sole the Meier supervisor. presented open amphitheater play The is in an and during night every Tuesday, Thursday, Sunday the sum- twenty-two with mer months. It consists of different scenes no professional persons A of intermission. cast from 80 to 90 actors, stagehands, ushers, sellers, regularly employed ticket as addition, parkers. performance ticket takers and In car each re- quires supernumeraries "supers" 120 to 150 are com- monly They people compensation. called. are These receive arrangement Spearfish under furnished an with Chamber participating of Commerce churches. and various A church agrees people perfor- furnish a certain number of for each paid mance and is a certain sum of Commerce. the Chamber nothing. pays Defendant amphitheater
The is located on a on the western hillside edge stage gate, Spearfish. city consists main The Martha, house, stage, Mary temple home of Pilate's center building, platform, council the Garden Olives and tomb area. Thereafter, gravel leading bridge, pathway up there is a Golgotha. slopes crucifixion to the area on Hill of As hill gate city west to east faces east audience with the main the north and hill to the crucifixion south.
Originally top the crucifixion scene took hill, in 1947 but this was lower the hillside where moved down higher plateaus provided. two used is now level participants play crucifixion are stationed on the bridge plateau partici- lower level. From to the where during pants steep stand the crucifixion scene there is a rise gravel approximately Except pathway for the feet. side *10 weeds, rocks, bushes, stones, of the hill is covered with and gravel. pathway plateau sharp nears the first there a As the is sharp turn to left and a rise of about four feet a level ledge grassy plateau protected The of this lower is not area. rail, hedge. fence, any by in manner a evening July plaintiff partici- On the went out to friend, pate play super as a with her Mrs. Yanzick. Belle given part She was and costume took usual in several Golgotha. prior scenes The the march march entered stage gate proceeded from the main or north a south- and Guards, horseback, erly procession direction. Roman led the by Temple followed Guards and Then came the two thieves. portraying carrying Christ the cross. was fol- He by group priests composed profes- lowed and citizens including supers plaintiff sional actors and and her friend. buildings procession stage proceeded past on the area area, and continued down to the Garden of Olives and tomb age persons years where under 14 others and who do not de- proceed going drop by sire to further out behind tomb. Mrs. dropped point plaintiff by Yanzick out at this and continued on going bridge up Golgotha. pathway across participants procession.
Some 25 or 30 continued plateau they spaced When reached the and stationed charge. by priests placed directly Plaintiff was in front or higher plateau upon north of the which the crosses stood. given
After the scene in which Christ is crucified a cue is lights All defendant. are turned off and an storm electrical recording flashing lights. tape simulated means of a During participants hill, running, the storm descend the scream- ing, fear, excitement, yelling express and consternation. during part It was this plaintiff of the crucifixion scene that injured. given right
When the cue was turned to her walking graveled pathway. commenced toward As she suddenly neared this area of descent she was struck from be- ledge plateau. hind and knocked over She landed *11 22 receiving rocky the com- feet down hillside
about 8 being anyone plaintiff seen plained Prior to not of. struck had lunging running probably persons, Two other who or at her. acting However, boys supers, fell with were also her. left being rendering positively without aid and without identified. serving super plaintiff pay expecta- or As a was without gratuitous was, therefore, employee. She a Sec. tion of reward. Restatement, Second, Agency. lowly position of This is a 225 Only pay employment. under a those who render services express implied remedy our Work- contract have a under gratuitously Compensation men's Act and "those who are serve Schmeling Jorgensen, purview." 77 from its S.D. excluded gratui- However, employer responsible to a 558. an 84 N.W.2d is 17.0203, care, ordinary employee for his want of SDC tous but subject gratuitous damages employee to action for is in an a negligence contributory assump- and common law defenses risk, applicable tion of when under the facts. alleged injury proximate was
Plaintiff cause of her de- provide pageant to fendant's failure a safe area for the and guard guardrail. with a fence or failure area suitable In continuing, respect personal, and nondele- this a master has a gable duty provide place and safe to work his a suitable safety, employees their and He is not an insurer of servants. responsible his or want of ord- but to them for failing inary reasonably place provide care in a safe work. seq.; Master Servant 183 et 35 Master § C.J.S. Servant, duty providing p. This includes a 610. supervising competent sufficient number of fellow servants controlling unreasonable their conduct so there is not an Restatement, seq. harm to Sec. risk of other servants. 505 et Second, Agency. not fellow servant rule does absolve a The negligent from his conduct. master own providing place In to work defendant under safe duty ordinary The under de- to exercise care circumstances. gree required with the risk harm of care was commensurate duty reasonably anticipated. This extended to be of care working participants conditions under which and other pageant required Golgotha to descend Hill of in darkness after the crucifixion. was for It to determine whether or not defendant furnished a safe to work under circumstances, necessary precautions and took the to con- might trol the conduct of fellow servants. Reasonable minds regard. Moser, well differ this Daniels v. 71 N.W.2d 739. evidence, hand, presented on the other no issue of con- *12 negligence.
tributory Defendant testified he did not know of neglect any plaintiff's part. act of on employ She was in his and her actions were controlled and directed him. She stood and where stationed walked where directed. There is no evi- placed place, dence she herself in an voluntarily unauthorized knowingly exposed danger, or herself or otherwise conducted negligent herself in a manner. may
A
servant
assume
a risk of harm caused
the "un-
premises
safe state of the
employ-
or other conditions
of the
ment,
servant,
knowledge
if the
with
of the facts and understand-
ing
risks, voluntarily
of the
employ-
enters or continues
Restatement,
Second,
Schmeling
ment".
Section 521
Agency.
Jorgensen,
558;
Gregg,
77 S.D.
84 N.W.2d
Bartlett v.
Assumption
"A. that was left to each individual. There coming was no direction Everybody down the hillside. took care of their own descent from the hill." hedge railing fence, no or on Defendant then admitted there was ledge plateau. why asked he didn't consider When dangerous spot testified: this a he part represents which of the scene
"A. area people participating does not call for a fence and themselves scene directed conduct have been therefore, danger." area, properly in the there knowledge further his condi- Defendant testified about existing during tions the crucifixion scene:
"Q. right. you 24 or All Now I'll ask this: In the you Play put years it that have conducted this Spearfish- prior day July, 11th had to the get you anybody pushed bumped into when ever seen running leaving they started that hill? No, anybody.
"A. never seen I've "Q. complained anyone you Had ever July, prior day taken the 11th 1963? had "A. Yes. Yes.
"Q. Now, any complaints, Mr. I see. did of those Meier, allege they any complaints of state that those knocking pushing people down? them down, Pushing, knocking yes,
"A. No. but no." "Q. Now, something up Do I I want to clear else. your complaints testimony understand now that these you years had over all these did not concern what the up youngsters happened plateau? did or what on this cases, yes. In "A. some
"Q. Well, now, many complaints you how did have youngsters plateau? of or on this as to misconduct others up to with other I don't want mix it instances. very ascertain how often is difficult to that
"A. That youngsters were has come to me run- But word occurred. ning straight help I adults to hill and asked down the running they stop the hill down because these children endanger only people but at themselves other not hill." lower end of the properly application fellow servant rule was sub-
The jury. jury evidently con- mitted to and determined injuries solely by plaintiff's were not caused cluded that negligence of the fellow servant who knocked misconduct unguarded They apparently off embankment. found her nondelegable negligent performance his was in proximate duty providing place work a safe to which was injuries. negligence her combines When such cause causing negligence harm a fellow servant concurs with harm,. resulting employer responsible for the a servant is to jury Instruction No. 8 informed the that employer "an owes employee duty his to place to make safe the where required perform are to their services. Failure therein renders employer employee may therein liable to an who have sus- proximate neglect." tained as pre- result of his As viously obligation employer stated an provide has an to a "rea- sonably place safe expressed work" or as otherwise to "ex- ordinary providing Standing ercise place." care a safe alone complete Instruction No. is not or correct statement of an em- However, ployer's duty. elsewhere the instructions correctly ordinary is defined "want of care or skill" and the jury apply was advised that standard in each instance conduct under consideration. When read and considered as a correctly whole the advised only defendant was obligated ordinary providing exercise care in a safe necessary applicable "It not ques- work. the law to all *14 series, tions in a case in be stated each instruction in a it be- ing all, whole, sufficient if when considered as a state the law Am.Jur., Trial, correctly." p. 53 435. § assigns Defendant error with reference to other instructions given and refused carefully the court. We have considered 26 objections this case can- instructions in conclude and
these clarity, completeness, contin- and for their commended not be constituting degree they to the of uity be condemned nor can jury prejudicial As whole advised error. a reversible applicable law. and as to the issues days relating with defendant eleven had conversation In daughter plaintiff "his testified he told her her accident after only from the back and she had similar been run into had enough lucky steps was to catch herself". few and stumbled a danger any of such evidence was denial In of defendant's view knowledge prob- competent his of the to show relevant during arising employees ability his from the conduct of of harm McLain, pageant. S.D. performances Allen v. 69 prior may in be inferred such incident was time 390. It N.W.2d plaintiff's to accident.
During as an ad- of defendant's examination the course arrangements he what had been made was asked verse witness present to in the event of accidents. This was a doctor be objection being objected was immaterial sustained. to as Thereafter, order, similarly ar- defendant was asked what kit, rangements ambulance, had made an a first-aid been Objections questions all a nurse. to these were sustained. his should contends motion for mistrial have been Defendant granted pursuing of counsel an immaterial for misconduct line objection regard inquiry. The in this shows record was plaintiff's pursuing inquiry this line of and the court made to was jury admonish desist or to instruct not asked to objec- disregard question As each an same. asked and the court ruled This of in- tion was made thereon. line objections any quiry case was not material issue questions properly may cer- to the sustained. Misconduct get attempting tainly consist before the matters not asking making improper questions improper in issue of- Trial, However, proof. p. New fers of ’the 80. of whether or not misconduct determination counsel warrants trial, necessity, entirely rests a new almost in the discretion judge. sense, position any, pre- He is of the trial in a if *15 judicial of a clear effect of such misconduct. In absence abuse ruling that discretion his must be sustained. judgment appealed from should be affirmed. COMMISSION, Respondent
STATE HIGHWAY COMPANY, Appellant SWEETMAN CONSTRUCTION (153 682) N.W.2d (File 1967) Opinion No. 10352. filed October Rehearing denied December