Ecklund v. Barrick

• Citation: 82 S.D. 280,144 N.W.2d 605
• Decision Date: 29 August 1966
• Docket Number: No. 10269,10269
• Parties: Edwin ECKLUND, Plaintiff and Appellant, v. W. N. BARRICK and Hugh Mayes, Defendants and Respondents.
• Court: Supreme Court of South Dakota

Page 605

144 N.W.2d 605

82 S.D. 280

Edwin ECKLUND, Plaintiff and Appellant, v. W. N. BARRICK and Hugh Mayes, Defendants and Respondents.

No. 10269.

Supreme Court of South Dakota.

Aug. 29, 1966.

Stephens, Riter, Mayer & Hofer, Pierre, Joe H. Neumayr, Gettysburg, for plaintiff and appellant.

Martens, Goldsmith, May & Porter, Pierre, for defendants and respondents.

BIEGELMEIER, Judge.

In this action for damages for personal injuries to a ranch employee by a horse about to be broken, the Memorandum Decision of the trial judge on defendants' motion for judgment notwithstanding the jury verdict states the situation and law applicable thereto which meet the approval of this court on appeal. It is hereafter set out. Somes notes as to the evidence and record known to the trial judge, but not in that Decision, are added to further explain it. The trial judge wrote:

'Plaintiff, an employee of defendant, W. N. Barrick, owner and operator of two ranches in Potter County, South Dakota, brought this action against his employer and against Hugh Mayes, the ranch Foreman, for injuries he sustained on April 11, 1961. A verdict was returned for $17,500.00 in plaintiff's favor. Defendants moved for judgment notwithstanding the verdict ¹ or, in the alternative, for a new trial. Plaintiff, a single man, 32 years of age, was employed by Barrick as a ranch hand in the fall of 1960. His duties consisted of general ranch work, including taking care of cows, repairing fences, and haying. He was not hired to break horses. These duties were mostly performed on what is described in the evidence as the 14 Mile Ranch. If he had no further work on the 14 Mile Ranch, he was expected to report at the 5 Mile Ranch to perform such duties as directed by the Foreman, Mr. Mayes.

'Plaintiff reported to defendant Mayes at the 5 Mile Ranch on April 11, 1961, and was instructed by him to help Wardell and Blackwell with the horses. Wardell and Blackwell had been hired for the express purpose of breaking horses. On April 11 there were thirty or forty unbroken horses in a corral on the 5 Mile Ranch. Plaintiff, upon direction from Mr. Mayes, assisted Wardell and Blackwell in placing three or four of these horses in a stall in the barn. A swinging gate at the rear of the stall, which was fastened at one end with a rope, completely enclosed the stall. Plaintiff, standing outside the stall, watched while Wardell and Blackwell placed a hackamore ² one one of the horses. When this horse was ready to be removed from the stall, defendant Mayes directed plaintiff to untie the rope. Plaintiff, standing in front of the gate, was in the process of untying the rope, when the horse with the hackamore thrust his head over the top of the gate and, in so doing, struck plaintiff on top of the head. ³

'Plaintiff was involved in an automobile accident in 1950 and, as a result of this accident, he was hospitalized for an extended period. In 1951, at the Mayo Clinic in Rochester, Minnesota, he had a tantalum plate inserted in the frontal area of his skull. After the accident on April 11, 1961, plaintiff says this plate was dented; that he had dizzy spells, headaches, and was subject to seizures.

'Plaintiff had done general ranch work from the time he finished the 8th grade in school. He had ridden horses and, on a few occasions, assisted in breaking horses, prior to the time he was employed by Barrick.

'In establishing a prima facie case the burden was on the plaintiff to show actionable fault on the part of the employer. Three elements are necessary to constitute actionable negligence. (1) The existence of a duty or obligation on the part of the defendant to protect plaintiff from injury. (2) Failure of the defendant to perform or discharge that duty. (3) Injury to the plaintiff resulting from such failure. Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528; Daniels v. Moser, 76 S.D. 47, 71 N.W.2d 739.

'It is plaintiff's contention that the defendants failed to exercise due care in not warning him of the wild and dangerous character of the horses. Plaintiff, however, was aware of the fact that the horses were wild and unbroken. ⁴ He was familiar with the barn and the operation of the gate. His only duty to was to untie the rope in order to permit the gate to swing open. He was as well qualified as the defendants to observe the probable danger involved in having the horse thrust his head over the gate. Under these circumstances, he cannot complain that he was not warned of such danger. As our court stated in Stoner v. Eggers, supra, 'the purpose of a warning is to supply a party with information which he is presumed not to have.'

'It is the duty of a master to furnish his servants with a reasonably safe place to work, and with reasonably safe tools, appliances and equipment with which to perform the work. Where, however, the master has furnished a suitable place to work and suitable appliances, if the servant is mature and sensible and has had some experience in the work being done, he must look after himself as to all obvious dangers in the details of the work. Further, the master cannot be held liable for failure to furnish a safe place to work if the danger is so obvious and is before the servant's eyes to such extent that he must know by the use of ordinary intelligence, the danger that confronts him, nor can the master be held liable for failure to furnish the servant with safe tools where the servant has equal knowledge with the master as to the safety thereof, as where the tools furnished are of a simple nature in which defects can be readily observed. Stoner v. Eggers, supra.

'Plaintiff contends that defendants failed to furnish a safe place to work because the gate was low enough to permit the heads of...