Deshazer v. Tompkins
| Decision Date | 20 October 1969 |
| Docket Number | No. 10205,10205 |
| Citation | 460 P.2d 402,93 Idaho 267 |
| Parties | Laverne DESHAZER, Plaintiff-Appellant and Cross-Respondent, v. Rusty TOMPKINS and Homer Rhett, d/b/a T & R Lazy G Ranch, Defendants-Respondents and Cross-Appellants. |
| Court | Idaho Supreme Court |
James W. Givens, Lewiston, for appellant.
Robert P. Brown, Lewiston, for respondents.
Laverne Deshazer, the plaintiff-appellant and cross-respondent was employed as an irrigator and cattle feeder by Rusty Tompkins and Homer Rhett (defendants-respondents, and cross-appellants) on their ranch about half-way between Riggins and Whitebird, Idaho. On May 3, 1962, while operating a sprinkler system on the ranch, appellant's arm became caught in the chain drive mechanism of a self propelled sprinkler and was severely damaged. After a long period of medical treatment and hospitalization, the arm was saved and appellant has recovered a partial use thereof. This cause was previously considered by this court when an appeal was taken from a summary judgment granted in favor of the respondents. The summary judgment was reversed and the cause remanded for further proceedings. Deshazer v. Tompkins, 89 Idaho 347, 404 P.2d 604 (1965).
The cause was tried before a jury, which returned a verdict of $29,417.15 in favor of the appellant. Respondents moved for judgment notwithstanding the verdict, which was denied. Judgment was entered for the appellant on the verdict, and respondents filed their motion for new trial, which motion the trial court granted. Appellants appealed from the order granting a new trial and the respondents cross-appealed from the order denying their motion for judgment notwithstanding the verdict.
The cross-appeal will frist be considered, inasmuch as if that order were reversed, issues presented by the appellant's appeal would become moot.
The respondents contend in their cross appeal that the trial court erred in denying their motion for judgment notwithstanding the verdict.
This court has consistently held that a judgment notwithstanding the verdict should be granted only in the absence of evidence to support the verdict. Loosli v. Bollinger, 90 Idaho 464, 413 P.2d 684 (1966); Mabe v. State ex rel. Rich, 86 Idaho 254, 385 P.2d 401 (1963); Foster v. Thomas, 85 Idaho 565, 382 P.2d 792 (1963); Fawcett v. Irby, 92 Idaho 48, 436 P.2d 714 (1968).
During the trial of this case about the only undisputed facts were that appellant was employed by the respondents at the time of the accident, that he was severely injured by his arm being caught in the irrigation system drive mechanism, and that as a result he has suffered severe and permanent injury with resultant damage. Almost every other fact was in dispute and hotly contested between the parties. The repondents urge on their cross-appeal that the trial court erred in not granting their motion for judgment notwithstanding the verdict because they contend, the evidence establishes as a matter of law (1) that appellant assumed the risk of injury which he sustained and (2) that appellant was contributorily negligent.
The evidence presented at the trial, from respondents' point of view, indicates that the appellant was given a thorough explanation and instruction on the operation of this particular self-propelled irrigation system. He was told that the machinery was dangerous and that because of a tendency for the mechanism to tip over he should not attempt to operate it on a downhill slope unless he had the assistance of another workman or unless he had weights to hang on the machine to prevent it from tipping over. Testimony on behalf of the respondents also indicates that on the night prior to the accident there was a conversation between appellant and one of his employers and it was determined that it was necessary to use weights on the machine. The weights were at that time actually prepared for use by pouring concrete in buckets that could be hung upon the machinery. The respondents also testified that the buckets were available for use on the morning of the accident and that appellant should have used them or should have taken another workman with him to assist in changing the direction of the machine from uphill to downhill.
The appellant however denied and contradicted this testimony of the respondents. He testified that although the concrete had been poured in the buckets the evening before, it had not as yet hardened and therefore was not available for use. He further testified that he believed that he would have the assistance of another workman, but that the other workman had other duties to perform and did not accompany him in his operation of the irrigation equipment at the time of the accident.
It has been stated that the question of contributory negligence is ordinarily one for the jury and that it become a question of law only when the facts are undisputed and only one reasonable conclusion can be drawn from them. Deshazer v. Tompkins, supra; Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965); Fawcett v. Irby, supra; Kelley v. Bruch, 91 Idaho 50, 415 P.2d 693 (1966). Likewise the defense of assumption of risk, which was raised by the respondent, generally presents a question of fact, and becomes a question of law only when there is no other reasonable interpretation of the evidence than that the injured party assumed the risk. Deshazer v. Tompkins, supra; Williams v. Collett, 80 Idaho 462, 332 P.2d 1032 (1958); Otts v. Brough, supra.
In the present case, as was pointed out in the earlier opinion dealing with the facts presented on the motion for summary judgment, Deshazer v. Tompkins, supra, there were several unresolved questions of fact relating to the issue of assumption of risk,
89 Idaho at 356-357, 404 P.2d at 608.
During the trial in the lower court, appellant admitted that he had been warned of and knew of the dangers of operating the sprinkler machinery while going downhill. The evidence, however, shows that two or three days earlier his employer, knowing of the lack of weights and unavailability of assistance from other employees, inquired of appellant whether he believed he could accomplish the operation of the machinery downhill alone. Although somewhat hesitant, appellant attempted the task and was able at that time to make the change in direction on the sprinkler from uphill to downhill operation without incident. It cannot be said that as a matter of law a reasonable man having already attempted and accomplished the operation, as appellant did, of changing the direction of the sprinkler should not have attempted the operation a second time unaided by weights or other employees.
The evidence on the question of assumption of risk is not so clear as to require only one interpretation. Neither is the evidence so clear that it can be said appellant was contributorily negligent as a matter of law. The trial court did not err in its determination to deny respondents' motion for judgment notwithstanding the verdict.
Next to be considered is the appellant's appeal, he asserting that the trial court abused its discretion in granting respondents' motion for a new trial. The trial court granted the respondents' motion for a new trial on the grounds
(1) 'That the evidence introduced at the trial of this case is insufficient to justify the verdict rendered by the jury in favor of the plaintiff.
(2) 'That the verdict rendered by the jury is contrary to the law, the instructions given by the Court to the jury and the evidence produced at the trial.'
It has been suggested that the trial court should express its reasons for granting a motion for new trial. McAllister v. Bardsley, 37 Idaho 220, 215 P. 852 (1923); MacDonald v. Ogan, 61 Idaho 553, 104 P.2d 1106 (1940); Cox v. Cox, 22 Idaho 692, 127 P. 679 (1912); Wolfe v. Ridley, 17 Idaho 173, 104 P. 1014 (1909). None of these cases, however, require more than that the trial court express the grounds for granting a new trial, having reference to the eight grounds set forth in I.C. § 10-602. The cases do not require that the trial court specify its reasons for granting a new trial. The court in the present case did specify the grounds under I.C. § 10-602 which it relied upon in granting the mew trial, and nothing more was required of it. Moreover, it should be noted that failure of the trial court to specify the grounds would not, in any event, be reversible error. In each of the cases cited the court failed to state the grounds for granting a new trial, yet this court affirmed, stating, for instance, in McAllister v. Bardsley, supra,
37 Idaho at 224, 215 P. at 852 (Emphasis added.)
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