Bailey v. Davis

• Decision Date: 15 May 1923
• Citation: 193 N.W. 658,49 N.D. 838
• Parties: BAILEY v. DAVIS, Agent of the President.
• Court: North Dakota Supreme Court

49 N.D. 838

193 N.W. 658

BAILEY

v.DAVIS, Agent of the President.

Supreme Court of North Dakota.

Dec. 30, 1922.

Rehearing Denied May 15, 1923.

Syllabus by the Court.

To review the sufficiency of the evidence to support the verdict, a motion for a directed verdict or for a new trial is necessary.

Although a motion for dismissal and a motion for a directed verdict are both, in effect, demurrers to the evidence, nevertheless they are not identical.

In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover damages, it is held, for reasons stated in the opinion, that the verdict of the jury finding that the defendant was negligent and that the plaintiff did not assume the risk will not be disturbed.

In an action brought in a state court directly under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), where, under the facts pleaded and proved, it is doubtful whether the employee, at the time of his injury, was then engaged in interstate commerce, and where the defendant has failed to show in the record a petition and bond for removal of the cause, or any fraudulent attempt to evade the right of removal, and where, further, it is not shown that any different result would be obtained if the action had been removed, and where the state statute (chapter 207, N. D. Laws 1915) applicable to intrastate commerce embodies practically the same identical language as the federal Employers' Liability Act, it is held:

(a) That it is immaterial whether the federal act or the state act be applied.

(b) That the defendant has waived its right of removal, if any it had.

For reasons stated in the opinion, it is held, that the admission of certain evidence was nonprejudicial.

Robinson, J., and Birdzell, C. J., dissenting.

Appeal from District Court, Williams County; Lowe, Judge.

Action by James J. Bailey against James Cox Davis, the Agent of the President under the Transportation Act of 1920. From a judgment for plaintiff, defendant appeals. Affirmed.Dudley L. Nash, of Minot, W. B. Overson, of Williston, and Murphy & Toner, of Grand Forks, for appellant.

Fisk & Taylor, of Williston, and Greenleaf & Wooledge, of Minot, for respondent.

Statement.

BRONSON, J.

In a civil action for damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), plaintiff recovered a verdict for $3,500 against a common carrier. Defendant has appealed from the judgment.

The facts are: Defendant is the Presidential Agent of the carrier under the federal Transportation Act (41 Stat. 456). From about September 1, 1919, to March 13, 1920, while the carrier was under federal control, plaintiff worked as a car repair man in the yards of the carrier at Williston. There the carrier has its division point. There, in its railroad yards, the carrier maintained repair or rip tracks for purposes of repairing cars in bad order. There it repaired foreign cars and cars of its own. These rip tracks were not inclosed. Plaintiff's duties consisted in making repairs upon cars placed upon such rip tracks. On February 18, 1920, a gondola car loaded with coal from Wolf Point, Mont., arrived at Williston. It was in bad order. In accordance with the testimony of the carrier, this was the carrier's car. Plaintiff gave testimony to the effect that it was a foreign car. This car was sent to the coal chute of the carrier and the coal there unloaded on February 19, 1920. Then it was taken to the rip tracks. Plaintiff and another coworker were directed to repair this car. The needed repair was the installation of a new draft timber at the end of the car. It was necessary to prepare such draft timber. On February 20, 1920, plaintiff and his coworker started upon this work of repair. They picked out an oak timber, about 8x12, 12 feet long. The carrier furnished the materials, the tools, and instrumentalities. On the morning of February 21, 1920, they started active work upon the timber to prepare the same for installation in this gondola car. They worked in the open between the rip tracks. The ground was covered with smooth, slippery ice from snow that had been there throughout the winter and which had melted and frozen again. Upon this ice, there being no other place near the car, this oak timber was placed upon two wooden horses. It was necessary to bore some holes in the timber, insert some eight bolts, fasten the same with nuts thereon, and fashion the timber for a lug casting. The weather was cold; there was frost on the horses, the timber, and the bolts. Plaintiff's coworker was using a wrench that was so worn that it did not grasp or hold the nut securely. While the plaintiff and his coworker were working on opposite sides of this timber tightening these bolts, the wrench of the coworker slipped, the timber slipped off one of the horses, and struck the shin bone of plaintiff's right limb. Plaintiff saw the doctor of the carrier who dressed the leg and put bandages upon it. He was advised that the leg was all right and that he could go to work. Plaintiff continued to work until March 13, 1920, receiving treatment from the company doctor from time to time. Later, the leg became infected and was subjected to many operations which, in accordance with the testimony, occasioned both permanent impairment and disfigurement. In accordance with the carrier's testimony, this gondola car, after being repaired, was loaded with cinders and taken, on February 25, 1920, intrastate from Williston destined to Niobe, N. D. In the complaint, plaintiff specifically alleges that the action is brought under the provisions of the federal Employers' Liability Act. He alleges negligence of the carrier concerning the place where plaintiff worked and was ordered to work, concerning defective and unsafe tools with which plaintiff and his coworker were furnished and did their work, and concerning the negligence of plaintiff's coworker. The carrier, in its answer, alleges that plaintiff instituted the action fraudulently for the purpose of depriving the defendant of its constitutional right to remove the case to the federal court; further, that the plaintiff, at the time of his injury, was not then employed in interstate commerce; that plaintiff's injuries resulted from his own contributory negligence and through risks assumed by him.

During the trial, plaintiff introduced into the evidence over objection two letters from a person at Niobe, N. D., purporting to be the Agent of the Great Northern Railway Company, to the effect that such agent had no record there of the car which the carrier claimed was the gondola in bad order. At the close of plaintiff's case defendant moved for a dismissal upon grounds that plaintiff, at the time of his injury, was not employed in interstate commerce; that the cause of action pleaded was not proved; that no negligence was shown on the part of the defendant; that the injuries received were the result of a mere accident; that plaintiff assumed the risks and was guilty of contributory negligence. At the close of the testimony, defendant again moved for a dismissal upon grounds that plaintiff, by false allegations, had deprived defendant of its constitutional right to remove the cause; that plaintiff, at the time of the injury, was not engaged in interstate commerce; that no negligence of the defendant was established; that the plaintiff assumed the risks. No motion was made for a directed verdict or for a new trial. The instructions of the trial court have neither been settled nor returned. The principal contentions of the carrier are that, upon the record, plaintiff was not employed in interstate commerce at the time of his injury; that defendant was fraudulently deprived of a right of removal; that no negligence of the defendant was established; that plaintiff assumed the risks; that the trial court erred in receiving the letters mentioned.

Opinion.

[1][2] This court has frequently held that the sufficiency of the evidence to support the verdict is not subject to review where neither a motion for a directed verdict nor for a new trial has been made. Horton v. Wright, 43 N. D. 114, 116, 174 N. W. 67;Lofthouse v. Galesburg State Bank (N. D.) 188 N. W. 585;Morris v. Ry., 32 N. D. 366, 155 N. W. 861;Erickson v. Wiper, 33 N. D. 193, 221, 225, 157 N. W. 592;Buchanan v. Elev. Co., 33 N. D. 346, 350, 157 N. W. 122;Freerks v. Nurnberg, 33 N. D. 587, 595, 157 N. W. 119. At the close of plaintiff's case, and at the close of the testimony, plaintiff made a motion for dismissal. A motion for dismissal and a motion for a directed verdict are both, in fact, demurrers to the evidence. 38 Cyc. 1551, 1565. They are, however, not the same. The former is generally less hazardous to plaintiff's rights than the latter. Sorenson v. Smith, 65 Or. 78, 129 Pac. 757, 131 Pac. 1022, 51 L. R. A. (N. S.) 612, Ann. Cas. 1915A, 1127. The former under Code procedure generally seeks a nonsuit (7 Enc. Pl. & Pr. 829); the latter, a fact determination by the jury. The former seeks action of the court without a jury; the latter, action by the jury upon peremptory instructions. Our statutes recognize a distinction between the motions by providing for motions of dismissal and motions for directed verdicts, and the effect of each. Sections 7597, 7643, C. L. 1913; chapter 133, Laws 1921. A motion for a directedverdict supersedes a motion for dismissal or nonsuit. 26 R. C. L. 1066.

[3] Accordingly, upon technical grounds, the sufficiency of the evidence concerning the carrier's negligence or plaintiff's assumption of the risk is not before this court for review. Apparently at the trial, the defendant advisedly made its motions, as motions for dismissal. Now, before this court, by challenging the sufficiency of the evidence to justify the verdict, it seeks a final determination upon the merits of the facts pleaded and proved, whether considered under the federal, or the state, acts. However, we are not disposed, upon mere...