Garraghty v. Hartstein

• Decision Date: 14 October 1913
• Parties: GARRAGHTY v. HARTSTEIN.
• Court: North Dakota Supreme Court

26 N.D. 148

143 N.W. 390

GARRAGHTY

v.HARTSTEIN.

Supreme Court of North Dakota.

Sept. 17, 1913.

On Petition for Rehearing, Oct. 14, 1913.

Syllabus by the Court.

Plaintiff was injured by a picket pin, which was attached to one end of a rope used to picket a horse on certain vacant lots immediately east of her home. The end of the rope fastened to the picket pin was wound three times around a fence post; the other end being fastened to the halter of the horse. Between such post and the horse there was a public road or trail, and the injury happened while defendant's servants were driving his horse and vehicle along the side of such trail. The horse drawing such vehicle, being driven on a fast trot, came in contact with the picket rope, causing the same to unwind from the post, throwing the pin violently against plaintiff's arm. Evidence examined, and held, as a matter of law, that the question of the negligence of defendant's servants was erroneously submitted to the jury.

Usually it is the province of the jury, under proper instructions, to say from the facts and circumstances disclosed, whether due care was or was not exercised, or in other words, whether negligence ought to be inferred; but it is always not only the province, but the duty of the court, first, to determine as a matter of law whether, upon the facts most favorable to the plaintiff, negligence can properly be inferred. The jury cannot be permitted to arbitrarily and without evidence infer negligence. The evidence must affirmatively establish some circumstances from which the inference fairly arises that the injury resulted from the want of some precaution which the defendant ought to have taken.

If a person has no reasonable ground to anticipate that a particular act would or might result in injury to anybody, such act is not negligent. On the contrary, if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury approximately resulting from it, although he could not have anticipated the particular injury which did happen.

Appeal from District Court, Cass County; Charles A. Pollock, Judge.

Action by Margaret Garraghty against Bert Hartstein. From a judgment for plaintiff and denial of defendant's motion for judgment non obstante or for a new trial, defendant appeals. Reversed, with directions to dismiss.Pollock & Pollock, of Fargo, for appellant. M. A. Hildreth, of Fargo, for respondent.

FISK, J.

Action to recover for personal injuries sustained by plaintiff which it is alleged were caused by the negligence of defendant's servants. Plaintiff had judgment in the court below, and from such judgment, and also from an order denying defendant's motion for judgment non obstante or in the alternative for a new trial, he has appealed to this court.

The facts necessary to an understanding of the questions involved are briefly the following: At the time of the accident plaintiff resided in the city of Fargo with her husband and children, their house facing north on Fourth avenue. Just east of their residence there were several vacant lots, over which the public had by long user established a well-beaten road or trail for vehicles, which road or trail commenced near the northeast corner of the lot occupied by the residence of plaintiff and her husband and ran thence south and in a southeasterly direction across such vacant lots. It does not appear who owned these lots, and presumably such travel across them was with the implied license or consent of such owner. It had been the custom of plaintiff's daughter Nellie to feed the family horse on these lots, tethering it by a rope, which she fastened to a fence post on the southeasterly line of the family lot about 50 feet from the north line of such lot. Just prior to the plaintiff's injury, and about 7 o'clock in the evening, Nellie performed this usual act by using a rope about 45 feet in length, one end of which was fastened to the halter, and the other end, to which was fastened a picket pin, was wrapped three times around such fence post about one foot from the top, leaving the picket pin suspended a short distance toward the ground. This post was about 4 feet in height. The evidence discloses that the horse was left about 30 feet east of this fence post, being some distance east of such trail; the rope extending across the trail. The distance from this post to the trail was, according to the testimony, from about 10 to 15 feet. The proof discloses that the immediate cause of the injury was the driving of defendant's horse against this rope, causing the rope to suddenly unwind from the post with such rapidity and force as to violently throw the picket pin against the plaintiff, who, at the time, was wheeling a baby carriage a few feet west of such point, striking her right arm and causing a compound fracture of the radius. Defendant's horse was being driven at the time by one Yuster, who was accompanied by one Olson, both of whom were in the general employment of defendant. They had, a short time previous to the accident, passed over the trail en route to the dumping ground, where they took a load of dirt for defendant, and the accident happened on their return trip. Both Olson and Yuster swear that they were driving along such trail slowly at the time, and did not see the rope, while plaintiff's witnesses swear that they drove west of the beaten trail, and within about 5 feet of this post, and were driving on a fast pace or trot. The speed with which they were driving is, of course, a matter of mere opinion, and the testimony on this point is not at all clear or satisfactory.

It is the contention of defendant: First, that plaintiff failed to prove that Yuster and Olson were acting within the scope of their employment as defendant's servants at the time of the injury to plaintiff; second, that plaintiff was guilty of the negligence which caused her injury by knowingly permitting her daughter to picket their horse at the place and in the manner above stated, and that there is no negligence shown on the part of this defendant.

We shall assume, for the purposes of this case, that under the evidence the trial court properly submitted to the jury the question as to whether Yuster and Olson at the time of the accident were engaged within the scope of their employment as defendant's servants. In other words, we shall treat the case the same as though defendant was personally driving his horse at the time and place in question. We shall also consider the evidence bearing upon the alleged act of negligence in its most favorable light for plaintiff, with a view of determining whether the learned trial court was justified under the law in submitting to the jury the question of defendant's negligence, or that of his said servants as alleged in the complaint. The particular act of negligence charged is alleged in the complaint as follows: “That on the 8th day of June, A. D. 1911, while her husband's horse was tied to a fence post with a rope, with one end attached to an iron bar or picket, as it is commonly called, and was thus secured and in the immediate vicinity of plaintiff's home, and while plaintiff was on or about the premises occupied by the plaintiff and her husband and children, engaged in wheeling a baby carriage with an infant child therein, the said defendant's servant and driver of defendant's horse and wagon drove into the vicinity of where said horse was tied in the manner heretofore set forth, in a careless and negligent manner, and that said defendant's servant was then and there engaged in and about the master's business, and that without due care ran into the rope, which was attached to said horse and to said post, on one end of which there was attached the iron picket, as aforesaid, and by reason of such carelessness and negligence in driving in and about the said premises where the said plaintiff and her said child were, notwithstanding it was the duty of the defendant's servant while so engaged in and about the master's business to drive carefully so as not to injure the said plaintiff or her said child, or to collide with said horse then and there hitched as aforesaid, did, on the said 8th day of June, A. D. 1911, carelessly and negligently drive his horse into the rope attached to said horse as aforesaid, and with great force and violence, jerking said rope so attached to said pole, which was at the time and then and there holding said horse, which was greatly frightened at the time, and throwing the iron bar or picket attached to said rope off from said post with great force and violence, striking the said plaintiff on her right forearm, breaking the same, and greatly injuring the said plaintiff in and about her said right forearm, crippling and injuring its usefulness.”

How stands the proof in support of such alleged negligence? Before referring to the evidence adduced by plaintiff at the trial, it is proper to state that it is nowhere contended that defendant's servants were guilty of any intentional or willful wrong, but it is merely contended that they failed to use such care as a reasonably prudent person would be expected to use under like circumstances.

The various witnesses for plaintiff, in describing the speed with which defendant's horse was being driven at the time it came in...