| N.D. | Jun 5, 1920
Lead Opinion
This is a suit for a personal injury resulting from the •explosion of a jacketed water heating stove in the basement of defendant’s hotel at Steele, North Dakota. The plaintiff appeals from a judgment on a directed verdict.
The complaint avers that in April and May, 1919, at Steele, North Dakota, in a hotel there kept by defendant, the plaintiff was employed as janitor, porter, and general utility man; that in the basement of the hotel there was a water heating stove from which defendant had turned off the water without the knowledge of the plaintiff, and that in accordance with his employment and the directions or permission of defendant the plaintiff started a fire in the stove, when it exploded and seriously injured him. Before the close of the trial the plaintiff moved for leave to amend the complaint to conform to the facts by adding this averment: That the explosion was caused by the negligence of the •defendant in obstructing the water pipes leading from the stove to the tank, and thereby preventing the cooling circulation of the water, and yet allowing some of the water to remain in the water jacket around the .stove. The court denied the motion to amend, saying: I think if you allege that there was some water in the stove you must prove that by •direct testimony. The ruling, as well as the reasoning, was clearly wrong. Pleadings are to be liberally construed and may be amended by asserting allegations material to the case and conforming the pleadings to the facts proved when it does not substantially change the claim •or defense. Comp. Laws, §§ 7458-7482. The gist of the complaint is that the injury was caused by defendant’s negligence; the gist of the answer is that it was caused by plaintiff’s negligence. The proposed amendment relates to mere description and details regarding the negligence. The motion for a directed verdict should have been expressed in one simple sentence, yet it covers nine typewritten pages of the record. It is an elaborate argument on the merits of the case, and on the merits the motion was granted. That was all erroneous. The only •question then or now presented is on the suffciency of the evidences to ■sustain the verdict, that is, the sufficiency of the direct and circumstantial evidence submitted by the plaintiff, regardless of any conflicting •evidence.
In the basement of the hotel there was a water tank, a furnace, and ■.a, small jacketed water heating stove. The purpose of the stove was to
In May, 1919, as the weather grew warmer, the furnace heating was discontinued, and as the colored man was continuously using hot water, his mind naturally turned to the water heating stove. He testifies: “I talked with Miss Jennie [the maid in charge of the hotel] about heating the water and asked her why we could not have a fire in the stove, and she said, ‘The stove is all right.’ All we need is to put the pipe on and have hot water. She said, ‘The stove is all right, you can get a stove pipe and make a fire in it.’ I spoke to Mr. Smith about it and he said, ‘All right; all we need is to put the pipe on and have hot water.’ He said, ‘The stove is all right,’ and for me to get the pipe and build a fire. I got the pipe, put it up, built a fire. Then I went upstairs, heard the pipe crackling, went down to see the fire, opened the top door of the stove, which was red hot. Then the stove blew up. It bursted. The ashes and cinders hit me in the face and eyes. I was stone blind and can only see out of my left eye.”
As the testimony of the plaintiff is in no way improbable, on a motion for a directed verdict it should have been taken as true. It was for the jury to weigh the credibility of the evidence and to account for the explosion. It did not occur without a cause. In the burning stove it did not occur from gas, which fire instantly consumes. It must have been caused by superheated steam, which shows that the water was not completely drained and shut off from the stove, but it was shut off enough to prevent the inflow of water to cool the stove and the steam. In other words, the heating apparatus was not in working order, and that fact was not known to the plaintiff, and he was misled and lulled into a false security by the assurance that he had nothing to do only to fix the pipe and to build a fire.
As Smith knew, the plaintiff was a colored man, employed at $35 a month to do menial work. His color, his meager wage rate, and his employment indicated that he was a person of rather inferior mental
Judgment reversed and new trial granted.
Concurrence Opinion
(concurring specially). The sole question presented on this appeal is whether the trial court erred in directing a verdict in favor of the defendant. I believe that under the evidence in this case the questions of negligence, contributory negligence and assumption of risk were for the jury. I do not believe, however, that it can be said as a matter of law that the defendant was negligent.