Garraghty v. Hartstein
| Citation | 143 N.W. 390,26 N.D. 148 |
| Decision Date | 17 September 1913 |
| Court | United States State Supreme Court of North Dakota |
On petition for rehearing October 14, 1913.
Appeal from District Court, Cass County, Charles A. Pollock, J.
From a judgment in plaintiff's favor and from an order denying defendant's motion for judgment non obstante, or for a new trial, defendant appeals.
Reversed with directions to dismiss the action.
Judgment and order reversed, and judgment entered dismissing the action.
Pollock & Pollock, for appellant.
It does not appear that the servants of the defendant were acting within the scope of their employment as such, at the time of the injury to plaintiff. They were acting as independent contractors, upon special work in their own interests. Thorpe v. Minor, 109 N.C. 152, 13 S.E. 702; Dells v. Stollenwerk, 78 Wis. 339, 47 N.W. 431; Curtiss v. Dinneen, 4 Dak. 245, 30 N.W. 148; Brenner v. Ford, 116 La. 550, 40 So. 894; Fiske v. Enders, 73 Conn. 338, 47 A. 681; Fish v Coolidge, 47 A.D. 159, 62 N.Y.S. 238; McCarthy v Timmins, 178 Mass. 379, 86 Am. St. Rep. 490, 59 N.E. 1038; Long v. Richmond, 68 A.D. 466, 73 N.Y.S. 912, affirmed in 175 N.Y. 495, 67 N.E. 1084; Goodman v. Kennell, 3 Car. & P. 168, 1 Moore & P. 241, 6 L. J. C. P. 61; Reaume v. Newcomb, 124 Mich. 137, 82 N.W. 806; Perlstein v. American Exp. Co. 177 Mass. 530, 52 L.R.A. 959, 59 N.E. 194; Stone v. Hills, 45 Conn. 44, 29 Am. Rep. 635; Note to Jordan v. Reynolds, 9 L.R.A.(N.S.) 1034; Note to Ritchie v. Waller, 27 L.R.A. 169; Civil Code, §§ 5788, 5789.
The injury of which plaintiff complains was the direct result of her own negligence. Broadstreet v. Hall, 10 L.R.A.(N.S.) 933 and note, 168 Ind. 192, 120 Am. St. Rep. 356, 80 N.E. 145; Hoverson v. Noker, 60 Wis. 511, 50 Am. Rep. 381, 19 N.W. 382; Johnson v. Glidden, (74 Am. St. Rep. 795 and note), 11 S.D. 237, 76 N.W. 933, 5 Am. Neg. Rep. 97; cf. Evers v. Krouse, 70 N.J.L. 653, 66 L.R.A. 592, 58 A. 181, 16 Am. Neg. Rep. 515; 29 Cyc. 1665; Teagarden v. McLaughlin, 86 Ind. 476, 44 Am. Rep. 332; Dunks v. Grey, 5 Bann. & Ard. 634, 3 F. 862; Andrus v. Howard, 36 Vt. 248, 84 Am. Dec. 680.
M. A. Hildreth, for respondent.
As a general rule the question of negligence is for the jury, and when it appears that there is a lack of ordinary care, then it becomes a question of fact for the jury to pass upon, and it is no answer to this proposition, that the injury was unusual. Doyle v. Chicago, St. P. & K. C. R. Co. 77 Iowa 607, 4 L.R.A. 420, 42 N.W. 555; Hunt v. St. Paul City R. Co. 89 Minn. 448, 95 N.W. 312, 14 Am. Neg. Rep. 363.
The failure of defendant's servants, at the time of the accident, to exercise ordinary care, was the proximate cause of plaintiff's injury. Such servants were acting within the scope of their employment. Bartons Hill Coal Co. v. Reid, 3 Macq. H. L. Cas. 266, 4 Jur. N. S. 767, 6 Week. Rep. 664, 19 Eng. Rul. Cas. 107; Pollock, Torts, 7th ed. 458, 459; Cooley, Torts, 2d ed. 812; Seybold v. Eisle, 154 Iowa 128, 134 N.W. 579; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326, 5 L.Ed. 100; Wood, Mast. & S. 539; Smith v. Webster, 23 Mich. 298; Ramsden v. Boston & A. R. Co. 104 Mass. 117, 6 Am. Rep. 200, 8 Am. Neg. Cas. 372; Pollock, Torts, 7th ed. 82-84; Mullvehill v. Bates, 31 Minn. 364, 47 Am. Rep. 796, 17 N.W. 959; Rudd v. Fox, 112 Minn. 477, 128 N.W. 675; Ritchie v. Waller, 63 Conn. 155, 27 L.R.A. 161, 38 Am. St. Rep. 361, 28 A. 29; Collins v. Butler, 179 N.Y. 156, 71 N.E. 746, 17 Am. Neg. Rep. 106; Spaulding v. Chicago & N.W. R. Co. 33 Wis. 582; Pittsburgh, C. & St. L. R. Co. v. Kirk, 102 Ind. 399, 52 Am. Rep. 675, 1 N.E. 849; Phelon v. Stiles, 43 Conn. 426; Evans v. Davidson, 53 Md. 245, 36 Am. Rep. 400; Simons v. Monier, 29 Barb. 419; McDonald v. Snelling, 14 Allen, 290, 92 Am. Dec. 768; O'Neill v. Blase, 94 Mo.App. 648, 68 S.W. 764.
The plaintiff was not guilty of any affirmative act which was the proximate cause of her injury. Herbert v. Northern P. R. Co. 3 Dak. 38, 13 N.W. 349; Mares v. Northern P. R. Co. 3 Dak. 336, 21 N.W. 5; Elliott v. Chicago, M. & St. P. R. Co. 5 Dak. 523, 3 L.R.A. 363, 41 N.W. 758; Kunkel v. Minneapolis, St. P. & S. Ste. M. R. Co. 18 N.D. 367, 121 N.W. 830; Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427; Cameron v. Great Northern R. Co. 8 N.D. 124, 77 N.W. 1016, 5 Am. Neg. Rep. 454; Owen v. Cook, 9 N.D. 134, 47 L.R.A. 646, 81 N.W. 285; McTavish v. Great Northern R. Co. 8 N.D. 333, 79 N.W. 443; Carr v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N.D. 217, 112 N.W. 972; McBride v. Wallace, 17 N.D. 495, 117 N.W. 857; Williams v. Northern P. R. Co. 3 Dak. 168, 14 N.W. 97; Thomp. Neg. § 365; Hall v. Northern P. R. Co. 16 N.D. 60, 111 N.W. 609, 14 Ann. Cas. 960; Johnson v. Fargo, 15 N.D. 525, 108 N.W. 243, 20 Am. Neg. Rep. 460; McKeever v. Homestake Min. Co. 10 S.D. 599, 74 N.W. 1053.
Yuster and Olson were defendant's servants, acting within the scope of their employment, at the time of the injury to plaintiff. Rev. Codes 1905, § 5571; Wood, Mast. & S. § 1, p. 2; 26 Cyc. pp. 699, 1546 and notes.
They were not independent contractors or draymen. Waters v. Pioneer Fuel Co. 52 Minn. 474, 38 Am. St. Rep. 564, 55 N.W. 52; Sadler v. Henlock, 4 El. & Bl. 570, 24 L. J. Q. B. N. S. 138, 1 Jur. N. S. 677, 3 Week. Rep. 181, 3 C. L. R. 760; Turner v. Great Eastern R. Co. 33 L. T. N. S. 431; Texas & P. R. Co. v. Juneman, 18 C. C. A. 394, 30 U.S. App. 541, 71 F. 936; Singer Mfg. Co. v. Rahn, 132 U.S. 518, 33 L.Ed. 440, 10 S.Ct. 175; Stone v. Codman, 15 Pick. 297; Lewis v. Detroit Vitrified Brick Co. 164 Mich. 489, 129 N.W. 726; Larsen v. Home Teleph. Co. 164 Mich. 295, 129 N.W. 894; Barg v. Bousfield, 65 Minn. 355, 68 N.W. 45, 16 Am. Neg. Cas. 188; Brackett v. Lubke, 4 Allen, 138, 81 Am. Dec. 694.
Action to recover for personal injuries sustained by plaintiff, which, it is alleged, were caused by the negligence of defendant's servants. Plaintiff had judgment in the court below, and from such judgment, and also from an order denying defendant's motion for judgment non obstante, or, in the alternative, for a new trial, he has appealed to this court.
The facts necessary to an understanding of the questions involved are briefly the following:
At the time of the accident, plaintiff resided in the city of Fargo with her husband and children, their house facing north on 4th avenue. Just east of their residence there were several vacant lots, over which the public had, by long user, established a well-beaten road or trial for vehicles, which road or trail commenced near the northeast corner of the lot occupied by the residence of plaintiff and her husband, and ran thence south and in a southeasterly direction across such vacant lots. It does not appear who owned these lots, and presumably such travel across them was with the implied license or consent of such owner. It had been the custom of plaintiff's daughter Nellie to feed the family horse on these lots, tethering it by a rope, which she fastened to a fence post on the southeasterly line of the family lot, about 50 feet from the north line of such lot. Just prior to the plaintiff's injury, and about 7 o'clock in the evening, Nellie performed this usual act by using a rope about 45 feet in length, one end of which was fastened to the halter and the other end, to which was fastened a picket pin, was wrapped three times around such fence post about 1 foot from the top, leaving the picket pin suspended a short distance toward the ground. This post was about 4 feet in height. The evidence discloses that the horse was left about 30 feet east of this fence post, being some distance east of such trial, the rope extending across the trail. The distance from this post to the trail was, according to the testimony, from about 10 to 15 feet. The proof discloses that the immediate cause of the injury was the driving of defendant's horse against this rope, causing the rope to suddenly unwind from the post with such rapidity and force as to violently throw the picket pin against the plaintiff, who, at the time, was wheeling a baby carriage a few feet west of such post, striking her right arm and causing a compound fracture of the radius. Defendant's horse was being driven at the time by one Yuster, who was accompanied by one Olson, both of whom were in the general employment of defendant. They had a short time previous to the accident passed over the trial en route to the dumping ground, where they took a load of dirt for defendant, and the accident happened on their return trip. Both Olson and Yuster swear that they were driving along such trail slowly at the time, and did not see the rope, while plaintiff's witnesses swear that they drove west of the beaten trail and within about 5 feet of this post, and were driving on a fast pace or trot. The speed with which they were driving is, of course, a matter of mere opinion, and the testimony on this point is not at all clear or satisfactory. It is the contention of defendant:
First, that plaintiff failed to prove that Yuster and Olson were acting within the scope of their employment as defendant's servants at the time of the injury to plaintiff.
Second, that plaintiff was guilty of the negligence which caused her injury, by knowingly permitting her daughter to picket their horse at the place and in the manner above stated, and that there is no negligence shown on the part of this defendant.
We shall assume, for the purposes of this case, that under the evidence the trial court properly submitted to the jury the question as to whether Yuster and Olson, at the time of the accident, were engaged within the scope of their employment as defendant's servants? In other words, we shall treat the case the same as though defendant was personally driving his horse at the time and...
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