122 N.W. 390 | N.D. | 1909
Plaintiff, as guardian ad litem for one Ray Umsted, recovered judgment against defendant in the court below'for the sum of $5,000 as damages for the alleged negligence of the defendant, resulting in serious personal injury to such minor. At the conclusion of the plaintiff’s testimony, defendant moved for a directed verdict, which motion was denied, and an exception taken. At the close of all the testimony, defendant renewed its motion for a directed verdict, which was also denied, and an exception saved. Thereafter, on plaintiff’s motion, the trial court, over defendant’s objection, instructed the jury that the sole question for them to determine was the extent of the damage suffered by plaintiff on account of his injuries, to which ruling defendant excepted. On all other issues the trial court subsequently made findings of fact favorable to plaintiff. Thereafter defendant moved in the alternative for judgment notwithstanding the verdict, or for a new trial. The latter motion was denied and an exception taken.
The facts necessary to a correct understanding of the questions presented by the appeal are not seriously in dispute, and are as follows: Defendant is a corporation owning and operating a grain elevator at Colgate. The power necessary to operate the machinery in this elevator is generated by a gasoline engine located some distance from the elevator and connected by a shaft which, when in motion, makes about 200 revolutions per minute. One Borneman
Plaintiff testified: “While I was there several improvements were made. Among these was a car puller. H. B. Borneman installed it. Tim Russ did the work. I saw him do it and was there when he did it. * * * This car puller was a cylinder made out of about 4x6 about 3 feet long and round in the center, and put on the main shaft with eight bolts, and there was an iron pulley fastened to the rail about 30 feet from the shaft and a rope went from the drum through the pulley and up to the car, and I was to pull. * * * I was instructed to put the rope around the drum and pull the slack up. Borneman instructed me. * * * Pie told me to put that rope around the drum, and explained how to do it, and told me to stand back of the drum and pull the slack to make the rope bind tight enough on the drum to pull the car. He told me to pull that slack and I did so, and the drum slid and burned the rope, and he threw the engine out of gear and told me to take another hitch around the drum, and Mr. Foster also told me, and they both came out and showed me how to do it, and I did so, and he goes back to the elevator and threw the engine in gear again, and it started about 200 revolutions a minute and the rope broke instantly, and I was caught by the spring of the rope coming back. It caught me
In disposing of this appeal, however, in so far as the errors assigned upon the ruling of the trial court in denying defendant’s motions for a directed verdict and for judgment non obstante veredicto are concerned, it is our duty to construe the testimony in the most favorable light to the plaintiff. We will therefore assume the correctness of his testimony as to how the accident happened, which is to the effect that, after, the first attempt to operate the contrivance, the put the entire coil of roope around the capstan again as directed by, Borneman, and that, immediately after the shaft commenced to revolve on the second attempt, the rope broke between the car and the pulley, and plaintiff in some unknown manner was caught by the rope which sprang back, and was thereby pulled upon the revolving shaft or capstan, receiving the injuries complained of. Even in the light of these facts we are at a loss to understand how defendant can be held liable for plaintiff’s injuries as a matter of law. Plaintiff was about 19years of age, and, so far as the testimony discloses, possessed average intelligence, and was capable of exercising the discretion and judgment of the average person of his age. So far as the record discloses, he was equally as well qualified to understand the dangerous character of such contrivance as the witness Borneman, and he certainly had just as much opportunity as did Borneman to acquire knowledge thereof. They talked over together on'several occasions the advisability and feasibility of installing such car puller, and plaintiff was partially instrumental in procuring the same to be installed, was present and saw it installed, and assisted Borneman in procuring and adjusting
The servant has a right to assume and to rely upon the assumption that the master has provided a reasonably safe place for him to work, unless such place is obviously and necessarily dangerous; but the master is not required to instruct or protect the servant against obvious, known, and necessary dangers, unless the servant, by reason of his youth, inexperience, and lack of intelligence, is unable to fully understand and comprehend the nature and extent of
After a careful examination of the foregoing authorities and many others which we deem it unnecessary to cite, we entertain no doubt that the questions of plaintiff’s contributory negligence and assumption of the risks were under the facts disclosed by the record for the jury under proper instructions by the court. It was therefore not error to deny defendant’s motions for.a directed verdict and for judgment notwithstanding the verdict. This disposes of appellant’s assignments of error numbered 1, 2, 4, and 10.
The remaining assignments which it is necessary to consider will be disposed of together. They are assignments 3, 5, 6, 7, and 8. These assignments challenge the correctness of the trial court’s rulings in taking from the jury, on plaintiff’s motion, all questions except the extent of plaintiff’s injuries, and in disposing of the case as a court case by making findings' of fact and conclusions of law upon all the issues involved. At the conclusion of all the testimony, and after the court had denied defendant’s motion for a directed verdict, the court on motion of plaintiff’s counsel instructed the jury that the only question for them to consider was the question of the extent of the injury and the amount of damage. Defendant’s counsel took an exception to such ruling, and urge the same as prejudicial error. The learned trial court in granting such motion evidently proceeded upon the theory that by making said motions the parties thereby waived the jury as to all questions except the one as to the plaintiff’s damage, and consented in effect to a determination of the other -issues by the court. In this we think the court committed error prejudicial to the defendant. The latter neither expressly nor impliedly waived its constitutional right to a jury trial upon all the issues -in the case. The lower court no doubt considered as applicable the settled rule in -this state that where both parties move for a directed verdict at the close of the testimony, and the party whose motion is denied fail thereafter to specially request that -certain questions be submitted to the jury, he will be deemed to have waived a jury trial, and -to have consented to a decision of all questions by the court. While it is not entirely clear to our minds that such rule is inapplicable under the facts here presented, we are convinced that its enforcement would work a manifest hardship to appellant, and we are not disposed to extend
The prior decisions of this court relating to this question of practice have, we believe, extended such rule to its uttermost limit, and instead of extending it still further, as we are asked to do in this case, we would be rather disposed, on the contrary, to modify such rule as thus established by restricting its application to cases only coming within the evident spirit and intent thereof.
Judgment reversed, and new trial ordered.