Daniels v. Moser

• Decision Date: 29 August 1955
• Docket Number: No. 9487,9487
• Citation: 71 N.W.2d 739,76 S.D. 47
• Parties: Charles DANIELS, also known as Charley Daniels, Plaintiff and Appellant, v. E. B. MOSER, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 739

71 N.W.2d 739

76 S.D. 47

Charles DANIELS, also known as Charley Daniels, Plaintiff and Appellant, v. E. B. MOSER, Defendant and Respondent.

No. 9487.

Supreme Court of South Dakota.

Aug. 29, 1955.

Raymond Hieb, Ipswich, H. I. King, Jr., Aberdeen, for plaintiff and appellant.

Morrison & Skaug, Mobridge, for defendant and respondent.

SMITH, Judge.

The trial court entered judgment for defendant notwithstanding the verdict in favor of plaintiff. The narrow question presented by plaintiff's appeal is whether the evidence is sufficient to support the jury's determination that defendant was negligent. Under settled principles we view the evidence, and the inferences legitimately to be drawn therefrom, in the light most favorable to plaintiff.

Plaintiff was seated on a small load of hay in defendant's truck as defendant drove it through a cemetery gate. An archway sign over the gate brushed plaintiff to the ground. He suffered severe injuries.

At the time defendant was operating a sales barn at Bowdle, South Dakota, and the 74-year old plaintiff was in his employ. Defendant had previously cut the grass in the cemetery and four small piles were to be hauled. He and plaintiff rode to the cemetery in the cab of defendant's pickup truck. It was equipped with a stock rack, the rear end of which was open except for a low endgate. When they reached the cemetery plaintiff opened the gate and noticed the archway. Defendant loaded the hay in the truck and plaintiff pushed it back and tramped it down. When loaded the hay was rounded up at the front, but sloped down toward the back of the truck. They were but a short distance from the gate when the hay was loaded. Plaintiff described the distance as equal to the length of the courtroom.

As they were about to start the return trip, plaintiff announced his intention to ride on the hay. The defendant said, 'If you stay up there, you sit down.' The plaintiff replied, 'You bet your life,' and he sat down with his back to the front of the truck. The testimony does not describe plaintiff's position on the hay, but the fact that his head came in contact with the archway gives rise to the inference that he was sitting towards the top thereof. The defendant saw him after he was seated. With the plaintiff in that position the defendant entered the cab and drove slowly in low gear to a point just outside the gate where he alighted and went back to close the gate. He found plaintiff on the ground back of the truck.

The clearance of the archway measured nine feet six inches and the rack was eight feet four inches high. Plaintiff testified that he was struck on the back of the neck. He remembered nothing thereafter until they were placing him on his bed in Bowdle.

The defenses of assumption of the risk, and contributory negligence are not available to defendant because he failed to secure the payment of workmen's compensation in any of the ways described in SDC 64.0106. Richardson v. Farmers' Co-op Union, 45 S.D. 357, 187 N.W. 632; Utah Idaho Sugar Co. v. Temmey, 68 S.D. 623, 5 N.W.2d 486; SDC 64.0109. Our sole concern is with the negligence, if any, of the defendant.

Three elements unite to constitute actionable negligence: (1) The existence of a duty or obligation on the part of defendant to protect plaintiff from injury. (2) Failure of defendant to perform or discharge that duty. (3) Injury to plaintiff resulting from such failure of defendant. 65 C.J.S., Negligence, § 2, p. 324. The serious injury suffered by plaintiff, and the duty of defendant to protect plaintiff from harm are conceded. The matter in difference between the parties is whether the defendant failed to exercise due care to protect plaintiff from harm.

Whether negligence exists in a particular case must be determined by a consideration of all the facts and circumstances. The standard by which the conduct of defendant must be tested is that of an ordinarily or reasonably prudent person acting in like circumstances. Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153; 65 C.J.S., Negligence, § 1, p. 303.

In granting the motion for judgment n. o. v. the trial court observed, 'The only question is whether defendant was guilty of a breach of duty in not specifically cautioning plaintiff to watch out for the archway. He, in effect, did so caution him, by telling him to sit down. If the law imposes a greater duty than this then an employer is an insurer.'

In support of the view of the trial court respondent cites Maher v. Wagner, 62 S.D. 227, 252 N.W. 647, dealing with the simple tool rule, and quotes from 56 C.J.S., Master and Servant, § 203, p. 908, as follows: 'Where, however, the...