Ruehl v. Lidgerwood Rural Telephone Co.

135 N.W. 793 | N.D. | 1912

Bruce, J.

(after stating the facts as above). The first question to be determined is whether the defendant at the time of the accident was acting through a servant, or by means of an independent contractor. On this point John L. Matthews, the vice president of the company, testifies that Mr. Christenson was the vice president and had charge of and was a general manager of the construction work; that the company employed' Shulke to mark the places where the holes were to be dug; that no one was employed by the company to dig them. Frank Zimmerman, on the other hand, testifies that “Christenson employed me to dig that hole. I spoke for the job, and he offered me so much a hole, and I did that. Christenson offered me so much a hole, and I accepted the proposition on certain terms. He paid me 12-£ cents for each hole. I worked for the telephone company off and on all summer. My directions were that the holes should be feet. I asked Christenson, and that is what he told me the depth was. I put no guard around the first hole I dug. I made arrangements with Christenson. The arrangement was that I should dig the line of holes from Lidgerwood out to the place, about 2 miles, and that line of holes ran down along the side of the railway for about a mile. My arrangement with Christenson was that I should dig that line of holes and should be paid at the rate of 12{- cents per hole, to be paid for when the job was finished and accepted by the company, and under that arrangement I went ahead and did the work. Q. The tools used in digging the hole belonged to the. telephone company ? By the court: Do you know that they belonged to the telephone company, or do you merely mean that they were given you by Christenson? A. Why, they were not just exactly given me by Christenson. The tools were given me by Shulke. I don’t know who owned them. I had a talk with Christenson at the time I made the arrangement to dig these holes, at the time Christenson supplied me with these tools. I had nothing to do with the marking the place where these holes were to be dug. I was told to dig the holes where I found the stakes. Christenson told me that he would send Shulke out and mark the holes, and to dig them where the stakes were.”

The defendant cannot, under these facts, escape liability on the theory that Zimmerman was an independent contractor. There is much confusion in the authorities as to what is and what is not an independent contract. Some hold that the service must be rendered in the course of an independent occupation, and that the work done must be done by one whose independent business it is to do it. Judge Cooley, for instance, defines the term “independent contracts” as follows: “Persons following a regular, independent employment,, in the course of which they offer their services to the public to accept orders and execute commissions for all who may employ them, in a certain line of duty, ■using their own means for the purpose and being accountable only for final performance.” Cooley, Torts, p. 549. Other authorities make the distinction depend solely upon whether, in the transaction of the business, the workman is subject to the orders of his patron, both as to the manner of doing and the result of his work. Singer Mfg. Co. v. Rahn, 132 U. S. 518, 33 L. ed. 440, 10 Sup. Ct. Rep. 175. Nearly all of the writers, however, agree that where a person or corporation undertakes to do work upon the premises of the owner or of him who is in possession, and such first person intrusts the performance of the work to a contractor or workman, but does not, and is not authorized by the one in possession to, give the control of the premises to the workman or contractor, such workman or contractor will be looked upon as a servant of the first party, and not as an independent contractor. In other words, the courts are inclined to hold, and we hold in this case, that when the telephone company undertook to put the telephone in the house of Louis Ruehl, it impliedly agreed to put it in in a safe and proper manner, and not in a manner which would endanger the lives of the plaintiff and of his family. Anderson v. Moore, 108 Ill. App. 106; Perry v. Ford, 17 Mo. App. 213; Waters v. Pioneer Fuel Co. 52 Minn. 474, 38 Am. St. Rep. 564, 55 N. W. 52. There is much in this case which would lead us to hold that in no sense could the witness Zimmerman be held to be an independent contractor, and the general rule is that the burden of proof in such matters is upon him who alleges the fact. Midgette v. Branning Mfg. Co. 150 N. C. 333, 64 S. E. 5. Zimmerman testifies that he was in the employ of the defendant all summer, and that he did not furnish his own tools, A person is not an independent contractor merely because he is paid by the piece or by the job. Poster v. National Steel Co. 216 Pa. 279, 65 Atl. 618; Waters v. Pioneer Fuel Co. 52 Minn. 474, 38 Am. St. Rep. 564, 55 N. W. 52; Holmes v. Tennessee Coal, I. & R. Co. 49 La. Ann. 1465, 22 So. 403. Nor does the fact that Zimmerman was not to be paid until the joh was satisfactorily completed alter the case. This would merely be evidence of the fact that the method of work was subject to the approval of the company. It is a provision which is implied in all contracts of employment. No laborer can recover his daily wage unless he can show that he has earned it. Even if Zimmerman could be considered as an independent contractor in relation to the digging of the hole, he was not an independent contractor in relation to the whole of the work, which was the digging of the holes and the placing of the posts therein. His work was but a part of a series of work. The posts were on the ground to be put in by some one else. All that we learn of his contract was that he should dig the post holes. If the contract presupposed this and this alone, it would presuppose the construction of dangerous pitfalls, and the principal would be liable for them the same as if he had authorized an independent contractor to construct a wall or a building according to specifications which were inherently dangerous, and which resulted in the falling of such wall. The rule seems to be well established that where, in the making of an improvement of any kind, it is manifest that injury is likely to result unless due precautions are taken, a duty rests upon him who causes the work to be done to see that all necessary precautions are taken. See 26 Cyc. p. 1560, and numerous cases there cited. According to the evidence the contract was merely to dig the holes into which someone else was to place the posts when the proper time came. It is really immaterial, in this view of the case, whether Zimmerman was an independent contractor or not. It was the legal duty of the defendant to properly safeguard the holes. There is no evidence that the defendant transferred this duty to another. We are in serious doubt as to whether it could. Bower v. Peate, L. R. 1 Q. B. Div. 321, 45 L. J. Q. B. N. S. 446, 35 L. T. N. S. 321; Hughes v. Percival, L. R. 8 App. Cas. 443, 52 L. J. Q. B. N. S. 719, 49 L. T. N. S. 189, 31 Week. Rep. 725, 47 J. P. 772. We consider the reasoning of the case of Donovan v. Oakland & B. Rapid Transit Co. 102 Cal. 245, 36 Pac. 516, as entirely applicable in the case at bar, and we adopt it as our own. See also Homan v. Stanley, 66 Pa. 161, 5 Am. Rep. 389. There is a distinction between injuries resulting from the work itself and where the wrongful or careless act is in connection with some collateral work or matter. A distinction is made, indeed, between a contract whereby the independent contractor is required to dig a deep pit or well, and a third person is injured by falling into that well, and a case where a contractor is authorized to build a house, which in itself is not dangerous, but while building it he drops a plank upon the head of a passer-by. In one case the injury is occasioned by the subject of the contract itself, or the thing constructed under the contract. In the other it is occasioned by an act collateral to the construction. Davie v. Levy, 39 La. Ann. 551, 4 Am. St. Rep. 225, 2 So. 395.

We are unable to find, as a matter of law, that the father was guilty of contributory negligence in this case. It is true that before going to work in the fields he talked with Zimmerman, who was digging the first hole, and that he testifies that at the time “he did not think anything about covering the hole,” and that respondent’s counsel not only seeks to argue contributory negligence therefrom, but a lack of negligence on the part of the defendant. “Why, then” he asks, “should Zimmerman think of it ?” The conclusion he contends for, however, by no means follows. Plaintiff had the right to assume that in digging the holes in question Zimmerman would proceed with due care, and at the time he left for the fields Zimmerman was in complete control, and the hole was not even fully dug. “As there is a natural presumption that everyone will act with due care, it cannot be imputed to the plaintiff as negligence that he did not anticipate culpable negligence on the part of the defendant.” 1 Shearm. & Redf. Neg. 4th ed. § 92 and cases cited. The duty to properly guard the holes was upon the defendant, and not upon the plaintiff.

Nor do we believe that it was contributory negligence, as a matter of law, on the part of the mother to allow the child to play in the yard. In considering such matters, by far the greater number of the courts have borne in mind the fact that “men must workthat seed must be sown and housework done; that the hard-working mother of a family has many duties, and that the provider of bread must give a more or less uninterrupted attention to his labors; that it is only the few who have the means to employ a retinue of servants. At the most, and according to the great weight of authority, the question of contributory negligence was one for the jury, and not for the court. Garner v. Trumbull, 36 C. C. A. 361, 94 Fed. 321; Mellen v. Old Colony Street R. Co. 184 Mass. 399, 68 N. E. 679; Hewitt v. Taunton Street R. Co. 167 Mass. 483, 46 N. E. 106; Howell v. Rochester R. Co. 24 App. Div. 502, 49 N. Y. Supp. 17; Ehrmann v. Nassau Electric R. Co. 23 App. Div. 21, 48 N. Y. Supp. 379; Muller v. Brooklyn Heights R. Co. 18 App. Div. 177, 45 N. Y. Supp. 954; Kitchell v. Brooklyn Heights R. Co. 6 App. Div. 99, 39 N. Y. Supp. 743; Jones v. Brooklyn Heights R. Co. 10 Misc. 543, 31 N. Y. Supp. 445; Karahuta v. Schuylkill Traction Co. 6 Pa. Super. Ct. 319.

It is, of course, well established that a child of three and a half years of age cannot itself be made chargeable with contributory negligence. Rice v. Crescent City R. Co. 51 La. Ann. 108, 24 So. 791; Barnes v. Shreveport City R. Co. 47 La. Ann. 1218, 49 Am. St. Rep. 400, 17 So. 782; Pueblo Electric Street R. Co. v. Sherman, 25 Colo. 114, 71 Am. St. Rep. 116, 53 Pac. 322. Even the most rigid rule would make the question one for the jury. Young v. Atlantic Ave. R. Co. 10 Misc. 541, 31 N. Y. Supp. 441.

But respondent’s counsel contends that the judgment should be affirmed because the plaintiff failed to introduce any mortality tables in evidence,- or in any way to prove the life expectancy of the deceased child. He claims that on this account the jury could only have found a verdict for nominal damages, and that where only nominal damages could be recovered the doctrine of de minimis non curat lex applies, and appellate courts will not reverse judgments for the defendant when a new trial would only result in nominal damages for the plaintiff. Appellant answers this contention chiefly by stating that the matter was not brought to the attention of the court below, and the failure to prove damages was not urged as a reason for the motion for a directed verdict. Both counsel are partially mistaken. The fact as to whether the matter was. brought to the attention of the trial court at the time of the motion for a directed verdict is of no moment, and the rule is well established that except in the case of what may be called “hard actions,” and actions which involve title to land, or other than merely money rights, the appellate court will not reverse a judgment for the defendant when a new trial would merely result in the awarding of nominal damages. Raymond v. Edelbrock, 15 N. D. 231, 107 N. W. 194. The respondent, on the other hand, is mistaken in his assumption that it was necessary for the plaintiff to introduce mortality tables in evidence, and that the plaintiff failed to introduce evidence from which the yalue of the loss of the services and earnings of the deceased might be inferred. He proved the age of the child, and that the child was in good health. There was also evidence enough in the record for the jury to form a fair estimate of the business and occupation, and the circumstances of the father. On these facts the jury could, base their conclusions. After a very exhaustive examination of the cases and authorities, we fail to find a single authority which makes the introduction of such tables a prerequisite to a recovery of damages. Such tables, it is true, are admissible in evidence, and our statute, § 7303, Rev. Codes 1905, makes the so-called “Carlisle Tables” admissible. But nowhere do we find authority for the proposition that their introduction is absolutely necessary. In fact, the overwhelming weight of authority is to the effect that the court will take judicial notice of the standard tables, and if called upon, or even if not called upon, may instruct the jury in relation thereto. It would have been perfectly competent, in the case at bar, for the court to have instructed the jury as to the fact of the contents of such mortality tables; and the request for this; instruction, of course, was not required to be made prior to or at the time of the motion for the directed verdict. Kansas City, M. & B. R. Co. v. Phillips, 98 Ala. 159, 13 So. 65; Louisville & N. R. Co. V. Mothorshead, 97 Ala. 261, 12 So. 714; McDonnell v. Alabama Gold L. Ins. Co. 85 Ala. 401, 5 So. 120; Arkansas Midland R. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550; Nelson v. Branford Lighting & Water Co. 75 Conn. 548, 54 Atl. 303; 1 Greenl. Ev. 16th ed. § 6e; 17 Am. & Eng. Enc. Law, 2d ed. 900; Indianapolis v. Marold, 25 Ind. App. 428, 58 N. E. 512; Louisville, N. A. & C. R. Co. v. Miller, 141 Ind. 533, 37 N. E. 343; Shover v. Myrick, 4 Ind. App. 7, 30 N. E. 207; Alexander v. Bradley, 3 Bush, 667; Boettger v. Scherpe & K. Architectural Iron Co. 136 Mo. 531, 38 S. W. 298; Davis v. Standish, 26 Hun, 608; Abell v. Penn Mut. L. Ins. Co. 18 W. Va. 400; Abbott, Trial Ev. p. 729, note 4; Scheffler v. Minneapolis & St. L. R. Co. 32 Minn. 518, 21 N. W. 711. Anything that the court may take judicial notice of must be something which, from its nature, is or should be known to all men of ordinary understanding and intelligence, and such men the jury must be deemed to have been.

In the following cases damages running all the way from $1,000 to $7,500 were awarded by the juries, and sustained by the courts, even though there was an entire absence of mortality tables, or even of an instruction upon the subject. Myers v. San Francisco, 42 Cal. 215; Chicago & E. R. Co. v. Branyan, 10 Ind. App. 570, 37 N. E. 190; Eginoire v. Union County, 112 Iowa, 558, 84 N. W. 758; Union P. R. Co. v. Dunden, 3.7 Kan. 1, 14 Pac. 501; Franke v. St. Louis, 110 Mo. 516, 19 S. W. 938; Omaha v. Bowman, 63 Neb. 333, 88 N. W. 521; Morris v. Metropolitan Street R. Co. 170 N. Y. 592, 63 N. E. 1119; Hoon v. Beaver Valley Traction Co. 204 Pa. 369, 54 Atl. 270; Southern Queen Mfg. Co. v. Morris, 105 Tenn. 654, 58 S. W. 651; Johnson v. Chicago & N. W. R. Co. 64 Wis. 425, 25 N. W. 223; Kansas P. R. Co. v. Cutter, 19 Kan. 91; Chicago & A. R. Co. v. Becker, 84 Ill. 483; Louisville & N. R. Co. v. Connor, 9 Heisk. 20; Oldfield v. New York & H. R. Co. 3 E. D. Smith, 103; McGovern v. New York C. & H. R. R. Co. 67 N. Y. 417.

On the main question as to whether the jury could infer negligence, from the leaving of the post holes unprotected, we hold that it could. The first hole was completed at least three quarters of an hour before the time of the accident. Zimmerman knew that children were playing or liable to play in the yard. This they had a perfect right to do. The question, in the main, is one for the jury, and not one for the court.

The judgment of the District Court is reversed, a new trial granted, and the cause remanded for further proceedings according to law.