Bailey v. Davis

• Decision Date: 30 December 1922
• Court: North Dakota Supreme Court

193 N.W. 658

49 N.D. 838

JAMES J. BAILEY, Respondent, v. JAMES COX DAVIS, the Agent of the President under the Transportation Act of 1920, Appellant

Supreme Court of North Dakota

December 30, 1922

Rehearing denied May 15, 1923.

Action in District Court, Williams County, Lowe, J., to recover damages against a carrier.

Affirmed.

Judgment affirmed with costs.

Dudley Nash, W. B. Overson, and Murphy & Toner, for appellant.

The burden of proving interstate commerce is on the person asserting it (the plaintiff in this case), and where the proof does not show that a car under repair is devoted permanently, or has been assigned exclusively to interstate commerce at the time of accident, it is not engaged in interstate commerce and an action under the Federal Employers' Liability Act cannot be maintained. Mpls etc., R. Co. v. Winters, 242 U.S. 353; Central R Co. v. Paslick, 239 F. 713; Delaware etc. R. Co. v. Yurkonis, 238 U.S. 439; Payne v. Wynne (Tex.) 233 S.W. 609; Loveless v. Louisville etc. R. Co. (Ala.) 75 So. 7; Deffenbaugh v. U. P. R. Co. (Kan.) 171 P. 647; Herzog v. Hines (N. J.) 112 A. 315; Hines v. Industrial Acci. Comm. (Cal.) 192 P. 859; Manson v. Great Northern R. Co. 31 N.D. 643; Carver v. Ry. Co. 72 Tex. 308; Cooley, Torts, § 543; Boyer v. Ry. Co. (Minn.) 12 Am. Neg. Rep. 496; Timm v. Ry. Co. (Mich.) 57 N.W. 116; Roecke v. Ry. Co. 59 N.W. 243; Hanley v. Ry. Co. 62 N.W. 274; Hunter v. Co. 85 F. 379; Hamilton v. Ry. Co. 61 N.W. 415; Cameron v. Ry. Co. 8 N.D. 618; Dewey v. Ry. Co. 31 Ia. 373; Kemey v. Ry. Co. 61 Ga. 590; Maglin v. Ry. Co. 85 Ill. 481; Denny v. Ry. Co. 24 S.W. 317; Brunswick v. Ry. Co. 25 S.E. 759; Birmingham v. Mfg. Co. 12 So. 36; Taylor v. Baldwin, 21 P. 124; McDermott v. Ry. Co. 42 P. 348; Hudson v. Ry. Co. 55 F. 248; Berlick v. Ashland, etc. 67 N.W. 712; Gorham v. Ry. Co. 20 S.W. 1060; Lane v. Ry. Co. 29 N.W. 419; Snyder v. Ry. Co. 7 N.E. 604; Ry. Co. v. Silliphons, 8 S.W. 673; Hubert v. Ry. Co. 54 S.W. 1074.

"It is not necessary that the servant should be warned of every possible manner in which an injury may occur to him, or of risks that are as obvious to him as to the master, or which are readily discoverable by him by the use of ordinary care, with such knowledge, experience, and judgment as he actually possesses, or as the master is justified in believing him to possess." 29 Cyc. 1169.

"It is well settled that a servant cannot recover damages because of the dangerous condition of a working place, when such condition is as obvious or well known to him as to the master, or by the exercise of reasonable care by him would have been, or where it was the duty of the servant to ascertain as to the dangerous condition of the place which duty he has neglected." Woelflen v. Lewiston, 95 P. 497; Ell v. N. P. 1 N.D. 336; N. P. v. Hogan, 63 F. 102; Beleal v. R. Co. 15 N.D. 318; Boldt v. R. Co. 245 U.S. 441.

Where an experienced employee works in a dangerous place with dangerous tools, about which he knows, and is conscious of the danger and makes no complaint, and upon such complaint or without it is promised nothing, as a matter of law he assumes the risk. Boyer v. R. Co. 12 Am. Neg. Rep. 496; Ness v. G. N. 25 N.D. 572; Wyldes v. Patterson, 31 N.D. 282; Unsted v. Elevator Co. 18 N.D. 309; Hanley v. Grand Trunk, 62 N.H. 274; Ry. Co. v. Horton, 233 U.S. 492; Cartwright v. Ry. Co. 228 F. 876; Wheat v. Ry. Co. 99 N.W. 827.

Before letters are received in evidence, there must be, as in the case of other documents, some proof of their genuineness. This is not proved by the mere fact that the letter is received by mail when the signature is not proved. State v. Hall (S. D.) 84 N.W. 766; Sweeney v. Oil Co. 18 A. 612; White v. Gordon, 24 N.E. 1053; Pinkham v. Cockell, 43 N.W. 921; Hightower v. Ogeltree, 21 So. 934; Flamers v. Fletcher (W. Va.) 20 S.E. 87; 2 Jones, Ev. §§ 255, 298; Behrens Lumber Co. v. Lager (S. D.) 128 N.W. 698.

A motion for a nonsuit is in the nature of a demurrer to the evidence. It admits the truth of the plaintiff's testimony, together with every inference of fact which the jury may legally draw from it. Brown v. Lumber Co. (Or.) 33 P. 557; Warner v. Darrow (Cal.) 27 P. 737; Butler v. Hyland (Cal.) 26 P. 1108; Messenger v. Woge, 78 P. 314; Small v. Harrington, 79 P. 461; Klenichmidt v. McAndrews (Mont.) 12 P. 286.

The statutory dismissal for failure of proof is the same as the common-law nonsuit. Cartwright v. Hall (Minn.) 93 N.W. 117.

The practice of ordering a nonsuit for this cause is the same whether the cause is being tried by the court, referee, or a jury. Thorlson v. Wyman (Minn.) 59 N.W. 1009.

Fisk & Taylor, Greenleaf & Wooledge, for respondent.

"These questions really are immaterial here, since the Kansas statute is so similar to that of the United States that the liability of the defendant does not appear to be affected by the question which of them governed the case." Kansas City W. R. Co. v. McAdoo, 240 U.S. 51, 60 L. ed. 520.

The rejection of evidence as to the interstate character of the railway and of the employment offered for the purpose of making the Federal Employers' Liability Act applicable to a personal injury action brought by an employee against a railway company, if error, does not require the reversal of a judgment in favor of the employee, where the railway company's position was made no worse because the case was tried upon the hypothesis that the state law governed. Of course, the argument for the railway company is that Gray's employment on the cinder pit was employment upon an instrument of interstate commerce, and so an employment in interstate commerce. Chicago & N.W. R. Co. v. Gray, 237 U.S. 399, 59 L. ed. 1018, 9 N. C. C. A. 452.

"Where an injury was received while engaged in interstate commerce was alleged in a state court as the basis for a recovery under the Federal Employers' Liability Act (35 U. S. Stat. 65), and the evidence showed that it did not so occur, the allegations respecting the interstate character of the injury may be considered as eliminated, or the declaration amended and a recovery permitted under the state law, without depriving the defendant of any rights or immunities granted by the Federal act. . . .

"The plaintiff's declaration alleged that the injury occurred while the defendant was engaged and while the plaintiff was employed by it in interstate commerce. The allegations were such that, with that one, they stated a good cause of action under the Federal act, and without it they stated a good cause of action under the common law prevailing in the state. . . .

"The plaintiff asserts only one right to recovery from the injury and in the nature of the thing he could have but one. Whether it arose under the Federal act or under the state law, it was equally cognizable in the state court." Karas v. McAdoo (N.D.) 179 N.W. 710.

The question of defendant's negligence and plaintiff's contributory negligence is generally proper for the jury and when passed upon by it will not ordinarily be disturbed. Messenger v. Valley City S. R. Co. 21 N.D. 82, 32 L.R.A.(N.S.) 881, 128 N.W. 1023; Davy v. G. N. Co. 21 N.D. 43, 128 N.W. 311; Umsted v. Colgate Farmers Elev. Co. 18 N.D. 309, 122 N.W. 390; Cameron v. G. N. R. Co. 29 N.D. 481, 496, 151 N.W. 36.

"Doubt must be resolved in favor of the plaintiff and in favor of the findings of the jury by their verdict. It also seems to be a rule that in master and servant cases a railway is held liable to a higher degree of care than is required in less hazardous employments." Gunn v. Mpls. St. P. & S. Ste. M. Ry. Co. 34 N.D. 418, 427, 158 N.W. 1004; Am. Bonding Co. v. Ensey, 105 Md. 211.

"Where a letter has been received by the due course of mail in answer to a prior letter sent by the receiver with the name of the addressee of such prior letter signed thereto, a presumption arises that it is the letter of the person whose name is signed thereto." Am. Bonding Co. v. Ensey, 105 Md. 211, 11 Ann. Cas. 883.

"A letter received in the due course of mail purporting to be written by a person in answer to another letter proved to have been sent to him is prima facie genuine and is admissible in evidence without proof of the handwriting or other proof of its authenticity." 22 C. J. 908.

BRONSON, J. GRACE, J., BRONSON, Ch. J., CHRISTIANSON, BIRDZELL, NUESSLE, and JOHNSON, JJ., concurring. BIRDZELL, Ch. J., ROBINSON, J., dissenting.

OPINION

Statement.

BRONSON J.

In a civil action for damages under the Federal Employer's Liability Act, 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. From about September 1st, 1919, to March 13th 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 18th, 1920, a gondola car loaded with coal from Wolf Point, Montana, 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 of 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 19th, 1920. Then it was taken to the rip tracks. Plaintiff and another co-worker were directed to repair this car. The needed repair was the installation of a new draft timber at the end of the...