171 N.W. 851 | N.D. | 1918
Lead Opinion
Appeal from the judgment and order overruling the motion- of the defendant for judgment in said action notwithstanding the verdict or for a new trial.
The action is one brought by the plaintiff against the defendant to recover damages for the alleged carelessness and negligence of the defendant by reason of which the plaintiff received certain injuries to his person. On the 1st day of January, 1917, the plaintiff was in the employ of the defendant and was in charge of the defendant’s coal shed at the village of Fortuna, North Dakota. The coal shed was a place where the defendant’s engines, or some of them, received coal. It was plaintiff’s duty to fill the coal buckets and coal the engines and see that the coal buckets were kept filled. Plaintiff worked on the second floor of the coal shed, which was so constructed that there were two openings for the operation of the derrick in hoisting and lifting the large buckets of coal. Between the two openings there was a plank walk 2-.j- feet in width. When this walk was originally constructed it was 10 inches wider, a 10-inch plank having been removed, thus narrowing the walk to 2-J feet. The railroad track extended east and west through Fortuna. The coal shed is located in Fortuna,' immediately north of the main railroad track. The coal shed is 30 feet long by 18 feet wide. It is open on the south side. There is a first and second floor in the coal shed. There are two openings in the second floor which are located toward the center of the building. One of the openings is on the south side of the shed, and in this opening the derrick or crane works and lifts the buckets of coal through the second opening, which is located immediately north of the opening to which we have referred. Between these two openings, on the second floor, is a narrow walk of 2£ feet. As above stated, to the east and west of these openings is the second floor, upon which the buckets are placed when filled with coal for the purpose of coaling the engines. On the upper floor there is room for only eight buckets; there are twelve buckets used. In coaling freight engines the buckets from the lower floor are used, or quite often used, as
On the 1st day of January,'1917, while in the performance of the duties of his employment in coaling an engine, the plaintiff was blinded by coal smoke and steam from the engine driven into the shed by strong wind, lost his footing on the walk on the second floor of the shed, and fell to the floor, a distance of 9 feet 3 inches, thereby sustaining injuries to his head, neck, side, and internally.
The defendant, in its answer, denies negligence on its part and further pleads assumption of risk on part of the plaintiff. The amount of damages claimed in the complaint was $7,500. The case was tried to the jury on June 21, 1917, and a verdict for the plaintiff for $3,600 damages was returned by the jury. On November 1, 1917, the defendant made a motion for a judgment notwithstanding the verdict or for a new trial, — all of which was denied.
The defendant, in its appeal, relies upon six assignments of error and also upon the claim that the evidence is insufficient to justify the
“Q. Will you state whether or not the equipment and the plan of the coal shed at Fortuna is of the usual, ordinary character used for the purpose of coaling engines?”
We are of the opinion it was no error in excluding the answer to such question, for the reason that the question and answer were immaterial. One of the main questions in this case is, whether or not the employer had used ordinary care to provide a reasonably safe place for the servant in which to perform his duties. How other coal sheds were constructed, or what they contained, or whether the plan of the coal shed at Fortuna and the equipment therein was of the usual and ordinary character, or corresponding in plan and equipment with other sheds, it seems to us, was immaterial, and the answer to the question above set forth was, by the trial court, properly excluded.
The second question to which the answer was excluded by the court, asked of the same witness, is as follows:
“Q. From your knowledge and experience, would it be practicable or advisable to encircle that deck where the derrick is with railing of any sort ?”
And the further question, as follows:
“Q. From your knowledge and experience of such appliances, would it be practicable to operate the apparatus for hoisting this coal successfully or properly if the platform from which this derrick swings were railed in ?”
Objection having been made to each of these questions by the plaintiff, the witness was, by the court, not permitted to answer, and we think properly so, for answers to such questions could have been only a conclusion of the witness.
The defendant’s fourth assignment of error relates to the overruling of the defendant’s motion made at the close of all the testimony, for a •directed verdict on the ground that the evidence on the part of the defendant and as a whole fails to show any negligence on the part of the defendant as responsible for or contributing-to the injuries sustained by the plaintiff, and for the further reason that the risk of dangers, if any existed, in the occupation in which the plaintiff was employed, was
The question of negligence was one for the jury. If there was any negligence on the part of the defendant and there was competent evidence on the part of the plaintiff to show such negligence, the verdict should be sustained. Plaintiff testified to several changes which had been made in the coal shed since its construction, the most important of which was the removal of a 10-inch plank from the floor between the openings on either side. After the removal of the 10-inch plank there remained, between the two openings, but a narrow walk of 2-£ feet along either side of which there was no railing of any kind or character. In view of the extreme narrowness of the walk between the openings, and the distance from the second floor to the first, and the failure to have any method to protect the plaintiff while using such narrow walk in the discharge of his duties, this court cannot say, as a matter of law, that defendant used ordinary care to provide a safe place for its servant, the plaintiff, in which to work; nor that the defendant, as a matter of law, was wholly free from negligence. The jury had all the-testimony before it in regard to the narrow walk between the openings, the distance from the second floor to the first floor, and the fact that there was no guard or rail along said walk on either side. All this testimony tended to show negligence on the part of the defendant and failure to use ordinary care to provide a safe place for plaintiff in which to work. The jury, after considering all this testimony, rendered a verdict in plaintiff’s favor, thus holding that the defendant was guilty of negligence. In view of the narrowness of the walk between the openings and the long distance from the second floor to the first floor, and the fact that there was no guard or rail of any kind to protect plaintiff, we think the verdict finds sufficient support in the evidence. Whether it was possible for the defendant to place a rail or guard along either side of said walk was a question of fact for the jury. Plaintiff claimed there could have been a railing, if constructed at an angle just the same-as the boom. The defendant contends a railing constructed at an angle-
We are further of the opinion that the jury was justified in considering all the facts which were introduced in evidence which in any way tended to show negligence on the part of the defendant, including the failure to use ordinary care to provide a safe place for plaintiff in which to work, and that the court, by an instruction of law, could not take such facts from the jury. If the coal shed, at the time of the coaling of the engine, was filled with smoke and steam escaping from the engine, thus increasing plaintiff’s danger of personal safety, and making it more difficult for him to find his way, or if the coal smoke overcame plaintiff, it must be apparent that this condition added to plaintiff’s danger, and the jury was at liberty to consider such facts even if the court, by an instruction of law, had withdrawn such fact from the jury. If the facts were such as had direct relation to the accident and were such as were directly connected with the question of negligence of the defendant, they are to be considered by the jury. The jury are the exclusive judges of all facts which have any bearing or relation to the issues involved in the trial, and the court cannot, by an instruction of law, withdraw such facts from consideration by the jury except where they in no way have any relevancy to the issues involved. We do not think the court intended to do this when it gave the following instruction: “You are further instructed that the fact that large quantities of smoke and steam escaping from the engine on this occasion does not, in itself, constitute negligence.”
It is true that the escaping of large quantities of smoke and steam from the engine on this occasion does not, of itself, constitute negligence. If, however, the large quantities of smoke and steam from the engine found its way into the coal shed, as the testimony shows it did, and of such density that it overcame plaintiff and he fell from the place where he was working, it is a matter which has a direct tendency to prove negligence on the part of the defendant, and was a question of fact exclusively for the jury.
The testimony shows that the upright which carried the boom and
Defendant places very much reliance upon that part of its defense which relates to the assumption of risk by the plaintiff. In this defense we really believe that defendant must fail. If the injuries which plaintiff received were the result of defendant’s negligence, the defense •of the assumption of risk by the plaintiff could have but little, if any, force. The jury, by their verdict, must have found that defendant was negligent. It is true the plaintiff had been in the employ of the defendant for several years as section foreman prior to the time he was placed in charge of the coal shed at Fortuna. Tie had been in charge of the coal shed from four or five months prior to the time he received the injuries. He knew the character of the construction of the coal shed at Crosby and had seen others of like kind, but that is largely immaterial. Plaintiff was, of course, in a general way familiar with the construction of the coal shed at Fortuna. The narrow walk between the openings in the shed at Fortuna was materially different than the one at Crosby, or those which plaintiff had seen, in that it was narrower by 10 inches. The narrowing of this walk between the two openings in the shed at Fortuna might greatly increase the danger of plaintiff’s personal safety without him being conscious or aware of the increase of danger, and he might not know and appreciate the increased risk resulting from the material narrowing of the" walk between the openings. He had a right to assume that the master would not reduce the width of the walk between the openings to such an extent that, under any condition that might arise, such reduction of the width of the walk •would endanger or imperil plaintiff’s personal safety. If the danger were greatly increased, it cannot, as a matter of law, be said to have been so obvious that the plaintiff was bound to know and appreciate
If the master fails to use .ordinary care and reasonable diligence in providing a safe place for the servant in which to perform his duties, or fails to use due diligence in informing himself whether or not the place where the servant is to perform his duties is safe; or, if the master permits the place in which the servant is performing his duties to become unsafe temporarily or permanently by causes which are under the master’s control, such as in this case permitting his engines to emit large quantities of smoke, gas, and steam in close proximity to the place where the servant is performing his duties, in such manner that the shed was filled with smoke and steam thus subjecting the plaintiff to a danger which, by the use of ordinary intelligence, he could not have anticipated, the master, we think as the jury has found, would be negligent. Under such circumstances it could hardly be claimed the plaintiff assumed the risk and increased danger, nor that the danger was so obvious that the plaintiff should have known it, nor that it was an incident of his employment. The jury are the exclusive judges of the question of the assumption of risk. They have found in favor of the plaintiff and we think properly so.
We have examined with care the authorities cited by the defendant in support of the defense of the assumption of risk, including Ragon v. Toledo, A. A. & N. M. R. Co. 97 Mich. 265, 37 Am. St. Rep. 336, 56 N. W. 612. We would like to discuss each of the cases at length. To do so would make this opinion unnecessarily long. We do not think the cases are parallel with the case at bar. They are such cases, however, as tend to support the doctrine of assumption of risk. We feel, however, that the conclusion arrived at in the. case at bar is legally sound. In the Eagon Case cited by the appellant, the honorable Court, in the syllabus, said: “Plaintiff, while attending in the daytime to uncoupling a moving freight car from the engine in order that the car
The following language is also found in the opinion: “Self-preservation should have prompted him to look at this track to see whether it was in such condition as to warrant his going between a moving train and engine, though he had never seen the road before.”
The court in the case, in effect, said the plaintiff should not recover because he ought to have been familiar with the sidetrack, and that if he were not familiar with the sidetrack he should have looked under the car to examine the character of the roadbed before stepping between the car and the engine, — all of which the defendant had a right to expect of him, and that if he did not do any of these things, he should then have invoked the law of self-preservation, which should have prompted him to look at the track to see if it were in such condition as to warrant his going between the moving train and engine though he had never seen the track before. That is surely the placing of very •extensive duties on the brakeman in addition to the great number of ■duties which he has to perform, to do the actual work for which he is employed, and we cannot agree with the principle as thus so broadly stated. The injury, in the case we are discussing, might have occurred at any other sidetrack of the defendant over which the plaintiff passed in the discharge of his duties on his entire trip. The adoption of that principle, as we view it, would hold the brakeman to be thoroughly familiar with all of the sidetrack as well as of the main roadbed over which his trip or trips extended or his employment called him, no matter what the length might be. He must not only be generally familiar with the condition of the tracks, but he must know, or be held to know,
We think the more correct rule, stated concisely, and more in harmony with the spirit of our statute, is that where assumption of risk is pleaded as a defense, and if there be merit in such defense, it is in cases where the servant has been shown to have actual knowledge of the defect in the appliances and fully knew and appreciated the danger from the continued use thereof, and continued to use such appliances after having actual knowledge and appreciation of danger. Even in such case, it can be readily understood that it is not the business of the servant to order the master to make the repairs. He has no power to do so. The servant could report to the master the need of repairs. The servant is compelled to cam his living and support himself and family. He must earn his daily bread in the sweat of his brow; he must labor. He has perhaps a wife and children at home whose demands for food and clothing must be met. He must labor even if the appliances are not safe. He is willing to yield his limb, even his life, in performing the duties of his employment, if need be, that those
The one remaining point is that of excessive damages. Upon a careful examination of this question, we are convinced the damages are not excessive, nor is there anything in the record to indicate they were founded upon passion or prejudice of the jury. It is true the physicians in giving expert testimony did not state positively what length of time would be required for the plaintiff to have permanent recovery from his injury. This does not necessarily prevent the jury from taking into consideration such question. The injuries which plaintiff received were all described in the testimony. The injuries having been shown by proper testimony and the character of such injuries having been fully shown, the jury, in fixing damages, could determine from such testimony the probability of the permanency of recovery and the- time plaintiff would be wholly or partly incapacitated. It is conceded that plaintiff had an earning capacity at the time of the injury of at least $55 or $60 per month. The jury, being the exclusive judges of all the facts, fixed the plaintiff’s damages, including costs, at $3,668.60. As a matter of law, we cannot say the same is excessive, and believe the verdict of the jury should stand.
The order appealed from overruling the motion of defendant for a judgment in said action notwithstanding the verdict or for a new trial, and the judgment appealed from, are affirmed, with costs.
Concurrence Opinion
(concurring specially). The principal points relied upon by the defendant in this case are: (1) That there is no evidence of negligence; (2) that in any event the plaintiff voluntarily
It is of course conceded by the defendant that the questions of negligence and assumption of risk are for the jury in all cases where the facts are controverted, or, if uncontroverted, are such that different minds might reasonably come to different conclusions as to whether the defendant was in fact negligent, or the plaintiff did assume the risk of the injury involved in the suit. But defendant contends that in this case only one inference can be reasonably drawn both as to negligence and assumption of risk; that these inferences are both in favor of the defendant, and that hence the court should have directed a verdict in its favor. The evidence in this case is very close upon both propositions, but I am not prepared to say that reasonable men might not reasonably draw the-inference from the evidence that the defendant was negligent, and that the plaintiff did not assume the risk of the injuries for which he seeks to recover in this action. Hence, I cannot say as a matter of law either that the defendant was not negligent, or that the plaintiff assumed the risk of the injury. Neither can I saj that the verdict is so excessive as to justify this court in interfering with the trial court’s order denying a new trial. For these reasons I concur in an affirmance of the judgment and the order appealed from. I do not, however, concur in the discussion relative to the doctrine of assumption of risk, and the criticism of the decision of the supreme court of Michigan in Ragon v. Toledo, A. A. & N. M. R. Co. 97 Mich. 265, 37 Am. St. Rep. 336, 56 N. W. 612, contained in the opinion prepared by Mr. Justice Grace. The doctrine of assumption of risk has become firmly established as a part of the law of master and servant. It has been embodied in the statutory law of this state. See § 6107, Compiled Laws 1913. It is available as a defense under the Federal Employer’s Liability Act,- except in cases where the carrier has violated a statute enacted for the safety of the employees. See Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Jacobs v. Southern R. Co. 241 U. S. 229, 60 L. ed. 970, 36 Sup. Ct. Rep. 588; Baugham v. New York, P. & N. R. Co. 241 U. S. 237, 60 L. ed. 977, 36 Sup. Ct. Rep. 592, 13 N. C. C. A.