Ford v. Connell, 7451
| Citation | 204 P.2d 1019,69 Idaho 183 |
| Decision Date | 01 April 1949 |
| Docket Number | 7451 |
| Parties | FORD v. CONNELL |
| Court | United States State Supreme Court of Idaho |
Rehearing Denied April 26, 1949.
Rehearing Denied April 26, 1949.
Appeal from District Court, Seventh Judicial District, Canyon County; Thomas E. Buckner, Judge.
Judgment affirmed.
Dunlap & Dunlap, of Caldwell, for appellant.
Where a defendant moves for a non suit and the plaintiff moves for a directed verdict the defendant does not waive his right to trial by jury and does not submit the case to the court for its decision where he makes a seasonal and proper request that the case go to the jury for decision on the facts. In such case no presumption exists that the defendant intended to waive a jury trial.
Oregon Short Line Ry. Co. v. Mountain States Telephone & Telegraph Co., 41 Idaho 4, 237 P. 281; 18 A.L.R. (Annotation note) beginning page 1449; 69 A.L.R., note beginning page 636; 108 A.L.R., note beginning page 1319; Share v. Coats, 29 S.D. 603, 137 N.W. 402; Empire State Cattle Co. v. Atcheson T. & S. F. Ry. Co., 210 U.S. 1, 28 S.Ct. 607, 52 L.Ed. 931, 15 Ann.Cas. 70; International Battery Co. v. Westreich, 182 A.D. 843, 170 N.Y.S. 149; Fire Association of Philadelphia v. Mechlowitz, 2 Cir., 266 F. 322; In re Ironclad Mfg. Co., 2 Cir., 197 F. 280, 116 C.C.A. 642; Southern P. Co. v. U.S., 9 Cir., 222 F. 46, 137 C.C.A. 584.
The rule is well settled that a motion to go to the jury, although made after the denial of a directed verdict in favor of the moving party, is made in time, provided a verdict has not been entered for the opposing party. 18 A.L.R., annotations page 1449; 69 A.L.R., annotations pages 637 and 638; 108 A.L.R., annotations page 1321; Chas. H. Brown Paint Co. v. Reinhardt, 210 N.Y. 162, 104 N.E. 124; Walters v. Wise, Sup., 190 N.Y.S. 639; International Battery Co. v. Westreich, 182 A.D. 843, 170 N.Y.S. 149; Perkins v. Putnam County, 88 Ohio St. 495, 103 N.E. 377; Nead v. Hershman, 103 Ohio St. 12, 132 N.E. 19, 18 A.L.R. 1419.
Frank F. Kibler, of Nampa, and J. F. Martin, of Boise, for respondent.
The rule is well established in this state that where under all facts and circumstances, different minds might reach different conclusions as to whether a person is guilty of negligence, that however meager the evidence, if it is of a substantial nature and character, the findings of the triers of fact (in this case the trial judge) should prevail, and will not be disturbed on appeal. Smith v. Clearwater County, 65 Idaho 271, 143 P.2d 561; In re Randall Estate, 58 Idaho 143, 70 P.2d 389; Fleenor v. Oregon Short Line R. Co., 16 Idaho 781, 102 P. 897; McKissick v. Oregon Short Line R. Co., 13 Idaho 195, 89 P. 629; Denton v. Twin Falls, 54 Idaho 35, 28 P.2d 202; Call v. City of Burley, 57 Idaho 58, 62 P.2d 101.
In the case at bar both parties stipulated following the respective motions for preparation of a transcript for use of the court in deciding the case, each party to pay one-half of the cost thereof. It is therefore conformable to reason that by so doing, each party must have intended to and did submit the case to the Court for its findings upon the fact as well as the law.
A subsequent motion to have the jury decide all the facts comes too late, and it is not error to deny such a motion where findings are requested on general issues and not special issues.
Oregon Short Line R. Co. v. Mountain States Tel. & Tel. Co., 41 Idaho 4, 237 P. 281; Beuttrell v. Magone, 157 U.S. 154, 15 S.Ct. 566, 39 L.Ed. 654; Thompson v. Simpson, 128 N.Y. 270, 28 N.E. 627.
The respondent came to Caldwell, Idaho, in January, 1944. He was without experience in farm work. He placed an advertisement in a newspaper seeking employment as an inexperienced farm hand. The appellant owns and operates a fruit farm in Canyon County. He answered the advertisement of respondent. As a result of this contact, the respondent was employed by the appellant and went to work on appellant's ranch on March 20, 1944, at the agreed wages of $ 125 per month.
Respondent and his wife occupied a tenant house on the farm. Respondent's work consisted principally of pruning the trees, irrigating the orchard, and picking fruit. Respondent continued in this employment until the time of the accident involved in this suit, on March 16, 1945. The appellant owned a tractor which was steered by a wheel. The respondent was not an experienced tractor driver but sought experience by driving this tractor up and down the road. In January, 1945, the appellant purchased a caterpillar tractor which was operated by means of levers and brakes. Respondent's total experience in driving these two tractors prior to the accident, did not exceed thirty hours.
There is a peach orchard on appellant's farm. The east end of this orchard is comparatively level. However, towards the west end, the ground makes a fall of some twenty or thirty feet, the west part of the orchard being on a hillside. A canal runs along the west line of the orchard. During the years, a number of gopher holes have developed along the west end of the peach orchard. Irrigation water has run into these gopher holes, causing the ground to be undermined, holes to be washed out and, in some instances, the fruit trees to sink down. This condition has existed for several years and was well known to appellant.
On March 16, 1945, the respondent was engaged in disking the east portion of the peach orchard and was using the caterpillar tractor. The appellant was working with a pitchfork in that part of the orchard where the gopher holes are situated. He was engaged in throwing dead limbs and other debris into the holes.
According to the testimony of the respondent, the appellant directed him to bring the tractor down to the place where the appellant was working. The respondent had been over the ground and knew in a general way about the gopher holes. The respondent through inexperience was having difficulty in turning the tractor and could only turn it one way. He stopped the tractor and hesitated to drive over the ground where the gopher holes were located as he was afraid he would get in some place where he could not turn to the right. The appellant was about six or seven feet ahead and on the right-hand side of the tractor. The respondent asked him if it were safe to proceed and the appellant said, "Come in here and I will direct you", and motioned for respondent to come ahead. Immediately in front of the tractor was a place where the weeds had been mashed down and where fresh dirt and debris had been piled. No hole was visible to respondent.
The appellant in his testimony, denies that he directed the respondent to bring the tractor down to the west end of the orchard, and denies that he ordered or directed the respondent to drive the tractor over the ground where the gopher holes were located, and claims to have been some distance away, not more than sixty feet, when the accident occurred. He admits that he knew it was unsafe to drive a tractor over such ground and says that it was foolish for anyone to try to do so. He admits that he gave no warning to the respondent.
The respondent started the tractor and when he reached the spot where the fresh dirt and debris had been piled, the ground caved in and the rear end of the tractor fell into the hole, pinning the respondent under the rear end of the tractor. It is unnecessary to detail the serious and permanent injuries received by the respondent as a result of the accident, as no contention is made by the appellant that the damages allowed in this suit are excessive.
Thereafter, the respondent commenced this suit to recover damages against the appellant for the injuries sustained in said accident. By his answer, the appellant denied any negligence and affirmatively alleged contributory negligence on the part of the respondent and that the respondent had assumed the risk. Thereafter, a trial was duly held in the District Court in Canyon County. The taking of testimony was completed in the forenoon and the court thereupon excused the jury until two o'clock in the afternoon. After the jury was excused, the transcript discloses that the following proceedings were had:
If the Court please, at this time we would like to renew our previous motion for a non-suit on the same grounds as stated in the other motion, and we further move the Court to direct the jury to bring in a verdict for the defendant upon the grounds that the evidence on the part of the plaintiff has shown that he knew of the danger involved at the time he went in there and voluntarily assumed the risk;
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