27 S.D. 412 | S.D. | 1911
Action to' recover damages for personal injuries sustained by plaintiff in the service of defendant, who was a, contractor engaged in the construction of steel bridges. Plaintiff was employed as a laborer. While moving a steel beam by hitching a team of horses to one end and dragging it, plaintiff was required to put a chain around an end of the beam, and, as alleged in the complaint, before he could get out of the way, ‘‘said team of horses started suddenly with a jump and on the run,” resulting in serious injury to plaintiff. Defendant is charged with negligence in starting the team. The answer denies negligence, and alleges contributory negligence and risk incident to employment. There are nine assignments of error -in the record.
[i] In January, 1909, trial was had in Beadle county circuit court before Judge McGee, presiding in place of Judge Taylor, disqualified, which resulted in-a disagreement of the jury. On April 13, 1909, a notice of application for leave to amend the complaint was served, returnable before “the court” at Rapid City on April 22d, and an affidavit and copy of the proposed amended complaint were served on appellant. Beadle county, where the action was pending and was tried, is in the Ninth circuit, while Rapid City is in the Seventh circuit. Defendant appeared specially and objected to the jurisdiction of the court to hear the motion on the ground that Judge McGee had no jurisdiction over the case after he had adjourned the term in Beadle county and returned to his home circuit. The objection was overruled, and an order permitting the amendment was signed “by the court, Levi McGee, Judge.” The order allowing amendment and service of the amended complaint was made on the 22d of April, 1909: Issue was joined by answer to the amended complaint, and on the issues thus framed the action was tried and a verdict returned for plaintiff in the sum of $3,000 August 3, 1909. Nearly four months intervened between the service of the amended complaint and the trial of the action. No objections were interposed at the trial to the proceedings because of the amended complaint. If it be assumed that appellant is right in his contention that the order permitting amendment was made without jurisdiction, yet as the-
[2] The assignments upon all these rulings are in substantially the following form: “The court erred in overruling- defendant’s objections to the following questions propounded to plaintiff by his counsel on direot examination.” Then follows a series of questions, without any statement of the grounds of objections thereto, and without any statement of the answers to the questions, and without any reference whatever to the page or folio- of the abstract or record where the questions, objections, or answers may be found. Such assignments are wholly insufficient to- present any question for review upon appeal, and will not be considered by this court. Hedlun v. Holy Terror Mining Co., 16 S. D. 261-281, 92 N. W. 31.
[3] At the close of all the evidence, defendant’s counsel made the following motion: “At this time the defendant moves the court to direct the jury to return a verdict in favor of the defendant and against -the plaintiff on the ground that the testimony is insufficient to warrant a verdict against the defendant.” The motion was denied, and appellant seeks to- review this ruling. No specifications of the particulars in which the evidence is alleged to be insufficient is contained in the motion. In Tanderup v. Hansen, 8 S. D. 375, 66 N. W. 1073, this court said: “Whatever merit there might have been in this point had it -been stated in the motion to direct a verdict in the court below, it is not available in this court, for the reason that no -such ground was stated in the motion in the trial court. Where such a motion is made, the specific
Plaintiff, Schmidt, testified: “That the foreman, Kingery, hired him at Wolsey, and that he began work in September, 1907. That he had been a farmer and had never worked with a bridge crew or gang. That the foreman, Kingery, was gone a good deal of the time, and in his absence Charles Hallen took his place and
Winecup, as a witness on behalf of defendant, testified: That he owned the team and began work about the 7th of October and worked for one week. Mr. Kingery employed him. The team was perfectly safe anywhere. Kingery was not present the morning they did this work. Hallen said they would go over and get a load of steel, and they went. When they got to Virgil that morning, they were dragging the beams out, and, when they came back after that beam, he held the lines in one hand and the end of the chain in the other hand, laid the lines down, and put the chain around the end of the beam and picked up the lines and the horses started; did not know plaintiff was there until he heard him “holler;” pulled right back on the lines and stopped the horses. They picked the beam up off plaintiff’s foot; did not remember directions given by Hallen to Schmidt. Hallen went ahead with
Defendant’s deposition was offered in evidence. He testified: He was constructing steel bridges in Beadle county under a contract with the commissioners; knows the bridge his men were at work on at the time of the accident. E. H. Kingery was authorized to employ the men and was foreman in charge of the work; superintended the construction of all his bridges in Beadle county.' Defendant was not personally present during the construction of any of these bridges, and did not know of the plaintiff’s employment until pay rolls came in for that week. Hallen had been in his employment off and on for five or six years; was personally acquainted with him. ’He was employed as a member of the gang, and had no 'supervisory powers whatever, over the other men engaged in the work. He, the defendant, employed Mr. Hallen to work for him. Hallen had never hired or discharged men in connection with his work. Kingery was his representative, and had authority to hire his own men and to discharge them, and nobody else was authorized to do this; never saw Winecup’s team of horses and knew nothing about them and no complaint had ever reached him as to their safety or adaptabilitjr to the work; usually worked from eight to fifteen crews; was not himself on the work when any of the Beadle county bridges were built; devoted his time to the business of the company other than construction work.
The first and third specifications of insufficiency of evidence upon the motion for a new trial present but one question, namely, Whether Charles Hallen had authority to act as Kingery’s representative in the absence of the superintendent, Kingery. Certain evidence in the record tended to show that Hallen was authorized by Kingery to act as foreman, and that Hallen “bossed the whole crowd if Kingery was gone;” that Kingery told the plaintiff that Charley Hallen should take his'place when he was gone; and that Kingery was gone “lots of times.” The charge of the trial court submitting the. issues of fact to the jury was not excepted to and stands unchallenged in the record.
[4] The charge therefore is not before us for review, but may be looked to upon this appeal to ascertain the precise questions or
[6] Respondent insists that appellant is not in position on the record before this court to raise this question, and we think respondent is right in his contention. The court charged the jury: “If the acknowledged representative of the defendant in this case * * * directed the plaintiff and his colaborers to recognize Hallen in his absence, as his representative and' their boss and obey his orders, and the said Hallen in the absence of said representative ordered the plaintiff into the dangerous position,” etc. The acknowledged representative of the defendant in this case was Kingery. Defendant himself testified that Kingery was his representative and had full charge and control of construction work on all steel bridges — several in number — erected in Beadle county, under his contract with the commissioners of that county, and had full and exclusive authority to hire and discharge all employes and to direct and control their work and assign them their respective duties. By these instructions the court in unmistakable language withdrew from the jury any question of fact as to whether Carpenter had authorized Kingery to select Hallen as his representative in his absence, and instructed the jury as a matter of law that upon the undisputed evidence of Carptenter himself Kingery was authorized by 'Carptenter to designate Hallen to' act for him. This instruction not excepted to', became and is the law of the case, and is controlling even where the sufficiency of the evidence to sustain the verdict is challenged upon motion for a new trial with specifications as to> the insufficiency of evidence. In Lighthouse v. C., M. & St. P. Ry. Co., 3 S. D. 518, 54 N. W. 320, this court laid clown the rule that, where “no exception is taken by either side to the charge of the court, it must for the purposes of this case be taken as the law.” And in Malloy v. C., M. & St. P. Ry. Co., 25 S. D. 503, 127 N. W. 633, this court reaffirms the
[7] Appellant in his brief contends that the motion for direction of verdict upon the ground of insufficiency of the evidence and the motion for a new trial upon the ground of insufficiency of the evidence to sustain the verdict necessarily present the same proposition. However, this is not correct. On a motion for direction of a verdict with proper specifications as to insufficiency of the evidence, the correct rule of law must necessarily be applied in testing the sufficiency of the evidence; but upon a motion for new trial upon the ground of insufficiency of evidence to sustain the verdict the law as laid down by the court in its instructions not excepted to, whether they state the rule of law correctly or incorrectly, become the law of the case, and the sufficiency of the evidence can only be tested by the rule in the instructions. The conclusions arrived at necessarily dispose of appellant’s further contention that the negligence complained of and which occasioned plaintiffs injuries was the negligence of a coemploye, and that the danger was incident to the employment, and was assumed by plaintiff. We have carefully examined the entire record, and find no reversible error therein.
The judgment and order of the trial court are therefore affirmed.