DeMoss v. Great Northern Railway Co.
| Decision Date | 08 April 1937 |
| Docket Number | 6464 |
| Court | North Dakota Supreme Court |
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, for appellant.
A mere definition of contributory negligence is not a sufficient instruction on that subject and when the question is in the case it is the court's duty to give a specific instruction as to when under the facts the plaintiff might or might not be guilty of such negligence. Illinois R. Co. v. Nelson (C.C.A. 8th) 203 F. 956; Atchison R. Co. v. Hines (C.C.A. 5th) 211 F. 264; Pennsylvania R. Co. v. Shelly (C.C.A. 6th) 221 F. 901.
Negligence in the employment of an insufficient force of men for the work may be proved by direct circumstantial evidence, but, in accordance with the general rule, plaintiff must adduce enough evidence to meet the burden imposed upon him. 39 C.J. 1092; Madison Coal Corp. v. Stullken (C.C.A. 7th) 228 F. 307.
It is the master's duty to employ a sufficient number of servants to do the work in which they are employed with reasonable safety to themselves. Jirmasek v. Payne, 186 N.W. 189; Peterson v. American Grass Twine Co. 90 Minn. 343, 96 N.W. 913; Dell v. McGrath, 92 Minn. 187, 99 N.W. 629; Manore v. Kilgore-Petler Co. 107 Minn. 347, 120 N.W. 340; Labatt, Mast. & S. § 1107; Shearman & Redf. Neg. § 191.
Momentary forgetfulness will not relieve the servant of the assumption of a risk of which he had previous knowledge. Jacobs v. Southern R. Co. 241 U.S. 229, 60 L. ed. 970, 36 S.Ct. 588.
When the work is simple and the danger is observable to an ordinarily prudent and careful person, there is no duty to warn. Boyer v. Eastern R. Co. 87 Minn. 367, 92 N.W. 326; Torgerson v. M. & St. P. & S.S.M.R. Co. 49 N.D. 1096, 194 N.W. 741; Hallstein v. Penn. R. Co. (C.C.A. 6th) 30 F.2d 594; Mo. P.R. Co v. Horner, 15 S.W.2d 994; See v. Chicago, B. & Q.R. Co. (Mo.) 228 S.W. 518; Ark. Port. Cement Co. v. Taylor, 18 S.W.2d 904; Anderson v. Svehla (Neb.) 253 N.W. 863.
E. R. Sinkler and G. O. Brekke, for respondent.
In a case for damages on account of bodily injuries either a physician or a lay witness may testify as to the appearance of pain. Jentz v. National Casualty Co. 52 N.D. 688, 204 N.W. 344; Re Murray, 145 Iowa 368, 124 N.W. 193; Dombrenos v. Chicago R. Co. 174 N.W. 596; O'Brien v. Chicago, M. & St. P.R. Co. 89 Iowa 644, 57 N.W. 425; Beardsley v. Ewing, 40 N.D. 373, 168 N.W. 791.
Defects in a charge by reason of omissions are not ground for setting aside a verdict where no instruction embodying the omission has been prayed. Lindblom v. Sonstelie, 10 N.D. 140, 86 N.W. 357.
Unless a defendant requests an instruction, a nondirection of the court in that regard is not reversible error. Huber v. Zeiszler, 37 N.D. 556, 164 N.W. 131; Andrieux v. Kaeding, 47 N.D. 17, 181 N.W. 59; Farmers' Exch. State Bank v. Iverson, 51 N.D. 909, 201 N.W. 509.
If the defendant desires more explicit instructions than are given by the court, they should be presented to the court in writing with request that they be given. Carr v. Minneapolis, St. P. & S.S.M.R. Co. 16 N.D. 217, 112 N.W. 972.
A party who deems an instruction, which is correct as far as it goes, not sufficiently explicit, should request more specific and comprehensive instructions. McGregor v. Great Northern R. Co. 31 N.D. 471, 154 N.W. 261.
The defense of assumption of risk is affirmative in character, and the burden of proving that an employee assumed the risk is upon the defendant. 1 Roberts, Federal Liability Carriers, § 571; Kenyon v. Illinois C.R. Co. 173 Iowa 484, 155 N.W. 810; Fisher v. Central Lead Co. 56 S.W. 1106; Robie v. Boston & M.R. Co. 100 A. 925.
The doctrine is universal that the master's duty includes the furnishing of a sufficient number of competent servants to properly and safely perform the required service. Fitter v. Iowa Teleph. Co. 143 Iowa 689, 121 N.W. 48; Peterson v. American Grass Twine Co. 90 Minn. 343, 96 N.W. 913; Koofos v. Great Northern R. Co. 41 N.D. 176, 170 N.W. 859; Luisi v. Chicago & G.W.R. Co. 155 Iowa 458, 136 N.W. 322; Alabama B.S.R. Co. v. Vail, 110 Am. St. Rep. 23; Johnson v. Ashland Water Co. 71 Wis. 553, 37 N.W. 823, 5 Am. Rep. 243; 18 R.C.L. 739.
Assumed risk is founded upon the knowledge of the employee, either actual or constructive, of the hazards to be encountered, and his consent to take the chance of injury therefrom. Carter v. Kansas R. Co. 155 S.W. 638; 11 Bailey, Personal Injuries, 2d ed. § 354.
The ordinary risks of the employment which a servant assumes do not include any peril arising from a failure of a duty of the master. Fitter v. Iowa Teleph. Co. 143 Iowa 689, 121 N.W. 48; 28 L.R.A. (N.S.) 1218 and 1221; St. Louis R. Co. v. Birch, 28 L.R.A.(N.S.) 1250.
An employee assumes the risks of dangers normally incident to the occupation in which he voluntarily engages so far as these are not attributable to the employer's negligence. Gila Valley & N.R. Co. v. Hall, 232 U.S. 94, 58 L. ed. 521, 34 S.Ct. 229; Seaboard Air Line R. Co. v. Horton, 239 U.S. 595, 60 L. ed. 458, 36 S.Ct. 180.
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 cross rods. The plaintiff commenced work by removing the cross rods and...
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