DeMoss v. Great N. Ry. Co.

• Decision Date: 08 April 1937
• Docket Number: No. 6464.,6464.
• Citation: 67 N.D. 412,272 N.W. 506
• Parties: DeMOSS v. GREAT NORTHERN RY. CO.
• Court: North Dakota Supreme Court

67 N.D. 412

272 N.W. 506

DeMOSS

v.GREAT NORTHERN RY. CO.

No. 6464.

Supreme Court of North Dakota.

April 8, 1937.

Syllabus by the Court.

1. A motion for a directed verdict merely raises the question of the legal sufficiency of the evidence to sustain a verdict against the moving party, and in determining this question the appellate court adopts the view of the evidence which is most favorable to the opposite party.

2. In an action, brought by an employee against a common carrier under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), assumption of risk is a valid defense unless the carrier has violated some statute enacted for the safety of the employee and the violation contributes to the injury. If assumption of risk be proved, it is a bar to the action.

3. The risks which the employee assumes are merely the usual and ordinary risks of the particular employment or work in which he is engaged, those risks which are incident to the employment when they are not due to the master's negligence.

4. The burden of proof on the issue of assumption of risk is upon the employer. When there is no dispute in the facts on this issue, it becomes a question of law; but when there is such a conflict in the testimony as warrants reasonable men to draw different conclusions, the question is primarily one for the jury.

5. Where the trial court instructs generally and properly on an issue in the case, the appellant cannot complain that more explicit instructions were not given in the absence of request for such additional instructions.

Appeal from the District Court, Williams County; John C. Lowe, Judge.

Action by George DeMoss against the Great Northern Railway Company. Judgment for plaintiff, and the defendant appeals.

Affirmed.

Murphy, Toner & Kilgore, of Grand Forks, for appellant.

E. R. Sinkler and G. O. Brekke, both of Minot, for respondent.

BURR, Judge.

The plaintiff, an employee of the defendant, was injured while working under the direction of a foreman in removing false decking from a freight car. Plaintiff says he never performed such work before; that he was not familiar with the number of men required; that in removing the decking and taking it down some of it fell upon him and he was injured; and that this injury was caused “by reason of the negligence and carelessness of the said defendant in failing to furnish a sufficient number of men to do the work in which plaintiff was engaged, and by reason of the negligence and carelessness of the defendant in promising to furnish additional help to do such work and failing to do so, and by reason of the negligence and carelessness of the said defendant in ordering plaintiff to do such work without furnishing sufficient help to do such work in safety. * * *”

The defendant denies negligence and carelessness on its part and alleges that the “injuries and the resulting damage were the result of the plaintiff's own lack of ordinary care and his own contributory negligence.”

Further, defendant alleges that “such injuries and the resulting damage in the manner and at the time and place same happened were received or resulted, were assumed, as was the risk thereof, by the plaintiff under his contract of employment.”

At the close of plaintiff's case, the defendant moved the court to dismiss the action and to direct a verdict for the plaintiff, which motion was denied. At the close of the entire case the motions were renewed and denied. Verdict was returned in favor of the plaintiff, and from the judgment based thereon defendant appeals.

There are eight specifications of error-three dealing with the court's rulings on the admission of testimony, three dealing with alleged errors in the instructions, and two alleging error of the court in overruling the motions to dismiss. Appellant states the issues as follows:

“I. Was the defendant guilty of any actionable negligence which proximately contributed to the plaintiff's damage?

II. Was the defendant (plaintiff?) guilty of contributory negligence proximately contributing to his damage?

III. Did the plaintiff assume the risk of the circumstances, dangers and hazards which caused his injuries and damage?”

Plaintiff had been in the employ of the defendant at Williston for some twelve years as a carpenter and mechanic. November 16, 1934, the car foreman, under whom he worked, ordered him to take down the “false decking” from a freight car in the yards, promising to send men to help him. (This promise is disputed.) This decking consisted of crating on the sides of a freight car to render it suitable for the transportation of sugar beets. These sides had two sections each and were attached to uprights by means of U bolts with the nuts on the outside. The crating was solidified by means of crossrods. The plaintiff commenced work by removing the crossrods and then proceeded to unbolt the sides from the uprights. To do this he stood on a ladder on the outside of the car, near where the two sections joined. Each section weighed about 390 lbs. He had been working about two hours and forty-five minutes when, while working without help, one of the sections fell out, struck the ladder, and knocked him to the ground, so he was severely injured.

Rule 44 for the guidance of the foreman and workers-which was known to the plaintiff and the foreman-says, “Sufficient helpers will be furnished to handle such work as required. When experienced helpers are on duty and available, they will be used in preference to inexperienced men.”

Failure to furnish sufficient help raises the issue of defendant's “actionable negligence which proximately contributed to plaintiff's damage.”

Upon cross-examination the foreman testified that when the decking was taken down it was carried into a shed, and plaintiff inquired, “And how many men were used in carrying them into the shed?” Defendant's objection to this was overruled and the ruling is assigned as error on the ground that there was no question of lifting or carrying in the case, that perforce the lifting and carrying would occur after the accident, and the testimony was prejudicial. The probable weight of each section had been stated. The character, unwieldiness, and such features were pertinent to show whether it was negligence on the part of the defendant in assigning one man to handle such work. We see no error in the ruling.

A witness for the defendant, while testifying to examination of X-ray pictures of the injury, was asked if the injury received was common. Plaintiff's objection to the question was sustained. The witness was a practicing physician, employed by the railroad, and, doubtless, qualified to say whether or not such injuries were common to railroad employees. Later he testified to having considerable experience in the examination and treatment of such injuries. The materiality of the question is not apparent and so there was no error in the ruling.

A witness for the plaintiff, who had made an examination of him shortly after the injury, was asked if plaintiff complained of pain when the doctor was manipulating his foot. Defendant's objection was overruled. Later the doctor testified, without objection, that in forming his opinion he took into consideration what the plaintiff told him when he was making the examination. We see no error in the ruling.

In the instructions to the jury the court charged:

“The burden of proof is upon the defendant to prove by a fair preponderance of all the evidence that the plaintiff assumed the risk of his employment.

‘Assumption of risk’ is a term in a contract of employment by which the employee agrees that dangers of injury obviously incident to the discharge of his duty shall be at the employee's risk. The assumption of risk appears to involve the fact of comprehension that a danger is to be encountered, and a willingness on the part of the employee to encounter it. The law as to assumption of the risk by the plaintiff applies only to the risk which the plaintiff knows and appreciates, or which in the exercise of due care he should have known and appreciated.

It is for the jury to say whether or not the plaintiff in accepting the employment assumed the risks referred to heretofore. Should the jury find that the injuries complained of grew out of a risk that was ordinarily incident to his employment, then your verdict should be for the defendant. Such a risk, however, is one that does not arise or grow out of negligence on the part of the defendant or his servants, except where the employee knows and appreciates such dangers arising from such negligence at the time of encountering them.”

and further:

“I charge you that, although one who goes into a position which he knows to be dangerous must be deemed to have assumed all risks reasonably to be apprehended therefrom, he is not necessarily guilty of contributory negligence because he knew the danger from which his injury happened. His knowledge is evidence of contributory negligence, but not conclusive. The test is whether he actually exercised due care in acting.”

Appellant says this is erroneous in that the assumption of risk appeared on the plaintiff's evidence and therefore the defendant did not need to offer any evidence at all and that in any event it was erroneous because it required the defendant to prove “the plaintiff assumed the risk of his employment” and that as a matter of law the plaintiff always “assumes the ordinary risks of such employment and no proof of that fact need be offered.”

Appellant says that this portion of the charge was made unintelligible because “the defendant pleaded both assumption of risk and contributory negligence, and both were issues in the case and the defendant was entitled to a clear cut, correct and intelligible instruction separately on each.”

In instructing on contributory negligence, the court said: “Contributory negligence in a legal signification is such an act or omission on the part of the plaintiff, amounting to a want of ordinary care...