Gilmore v. Western Electric Co.
| Decision Date | 15 April 1919 |
| Court | North Dakota Supreme Court |
Action for personal injuries in District Court, Stutsman County Coffey, J.
From a judgment, upon a directed verdict, for the defendant plaintiff appeals.
Affirmed.
Judgment of the District Court affirmed, with costs to the respondent.
John P DeVaney, Geo. W. Thorp, and Russell D. Chase, for appellant.
"The defendant was negligent in not furnishing gloves for plaintiff's protection." 3 Labatt, Mast. & S. § 949, and numerous cases cited, and annotations under note 2; see also § 939; 18 R. C. L. § 92, p. 589; 26 Cyc. pp. 1433, 1441, and citations. Snyder v. Mutual Teleph. Co. (Iowa) 112 N.W. 776; Traut v. Light Co. (Mo.) 132 S.W. 58.
"It is actionable negligence on the part of a master to fail to furnish his servant with such tools and appliances as may be required for the reasonably safe prosecution of his work." 26 Cyc. 1097, 1106, and cases cited; Lang v. Baylies, 19 N.D. 582; Herbert v. N. P. R. Co. 3 Dak. 38; N. P. R. Co. v. Herbert, 116 U.S. 642; Gates v. Co. (S.D.) 50 N.W. 907; Cameron v. R. Co. 8 N.D. 124; Bennett v. R. Co. 2 N.D. 112; Boss v. Co. 2 N.D. 128; Umsted v. Elevator Co. 18 N.D. 309; Mehan v. Co. 13 N.D. 432; Wyldes v. Patterson, 31 N.D. 282; Gerke v. Zimmerman (S.D.) 154 N.W. 812; Wyldes v. Patterson, 153 N.W. 630.
"When a master employs electricity in his business he must exercise every reasonable precaution known to protect his servants from injury." 26 Cyc. 1120; Mobile Electric Co. v. Sanges, 23 Ann. Cas. 461, note; Essex County Electric Co. v. Kelley (N. J.) 37 A. 619; Riker v. R. R. 72 N.Y.S. 168; Holden v. Teleph. Co. (Minn.) 122 N.W. 1018; Kelley v. Teleph. Co. (Minn.) 25 N.W. 76, and note; Clark v. Teleph. Co. (Iowa) 123 N.W. 327; Co. v. Tweed, 138 S.W. 1155; Indianapolis Teleph. Co. v. Sproul (Ind.) 93 N.E. 463; Pence v. Co. 155 Ill.App. 480; Will v. Teleph. Co. (N.H.) 30 L.R.A. (N.S.) 477.
"The master also owes the duty of inspecting all of the safety appliances and protecting his servants against injury." Cameron v. R. Co. 8 N.D. 124; Mehan v. Co. 13 N.D. 432; Bennett v. R. Co. 2 N.D. 112; Lang v. Baylies, 19 N.D. 582; Boss v. Co. 2 N.D. 128; Raymond v. Electric Light Co. (Idaho) 170 P. 88; Sanitonio Edison Co. v. Dickson (Tex.) 42 S.W. 1009; DuPree v. Alexander (Tex.) 68 S.W. 739; Clairain v. Co. (La.) 3 So. 625; Berley v. Teleg. Co. (S. C.) 64 S.E. 157; cases cited in note on page 776 of 21 L.R.A. (N.S.).
"The servant can recover unless his obedience to the order involved such obvious danger that no man of ordinary prudence would have obeyed it." Umstad v. Elevator Co. 18 N.D. 309; Webb v. Dinney Bros. 22 N.D. 377; Swanson v. Co. 135 N.W. 207; Wyldes v. Patterson, 31 N.D. 282; Warehein v. Huseby, 165 N.W. 502; Raymond v. Co. (Idaho) 170 P. 88.
"It would be absurd to contend that when the work is done under directions of a master the time when the same can be safely continued is matter for the individual opinion of each of the employees interested." Oakland v. Nelson (N.D.) 149 N.W. 337; 18 R. C. L. pp. 655 to 659; Lang v. Baylies, 19 N.D. 582; Allison v. Stivers (Kan.) 106 P. 996.
DeNegre, McDermott, & Stearns, and Knauf & Knauf, for respondent.
"When the master has furnished his servant a reasonably safe place to work, he is not liable when the servant is injured bye doing the work in an unsafe manner." Livengood v. Joplin, 77 S.W. 1077; Hayden v. Manufacturing Co. 29 Conn. 548; Dixon v. Teleg. Co. 68 F. 630; Greene v. Teleg. Co. 72 F. 250; Flood v. Teleg. Co. 131 N.Y. 603, 30 N.E. 196; Teleph. Co. v. Loomis, 87 Tenn. 504, 11 S.W. 356.
The plaintiff assumed the risks because they were obvious and well known to him, or might readily have been seen by him. Thompson v. R. Co. 3 Am. Neg. Rep. 53; Chandler v. A. C. E. R. Co. 4 Am. Neg. Rep. 189; 14 Am. & Eng. Enc. Law. 845; Bailey, Master's Liability for Injury to Servant, p. 145, and cases cited; Foley v. Light Co. 54 N.J.L. 411, 24 A. 487; Hayball v. Railway Co. (Mich.) 72 N.W. 145, citing Beach, Contrib. Neg. § 370; Kean v. Rolling Mills, 66 Mich. 277, 33 N.W. 395; R. Co. v. Frawley (Ind.) 9 N.E. 594, citing Engine Co. v. Randall, 100 Ind. 293; R. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; see also Kean v. Rolling Mills, 66 Mich. 277, 33 N.W. 395, citing Davis v. R. Co. 20 Mich. 105; R. Co. v. Dolan, 32 Mich. 510; Cooley, Torts, 542.
This is an action for personal injuries. On April 20, 1915, the plaintiff was working as a lineman for the defendant at Jamestown upon an electric pole carrying high-tension wires, making repairs thereto; while so employed, he came in contact with the electric current and received a shock occasioning severe burns and injuries to his hands. On the date of the injuries the index finger of his right hand was amputated. Thereafter, at Jamestown, he received medical treatment daily for his injuries until June 24, 1915. During this time his hands were in bandages, being dressed almost daily; with the flesh, particularly on his fingers, burned and raw, and with some of the fingers badly cramped. About two weeks prior to June 25, 1915, he told the manager of the defendant company that he needed money; the manager said he would write to Minneapolis to see about a settlement. Prior to that time a claim agent representing a liability company came to Jamestown, saw the plaintiff, and received from him a statement concerning the injuries. About June 23d thereafter, the claim agent came to Jamestown and for two days conducted negotiations with the plaintiff with a view to making a settlement for his injuries. These negotiations concerned principally the amount of the settlement. The plaintiff was offered, first, $ 700, then $ 1,000, and finally $ 1,200, at which figure settlement was made. The plaintiff signed and executed an acknowledgment for a full release therefor. He read and understood the same. He went over to the bank and received $ 1,200 in cash. Almost immediately thereafter the plaintiff went to Minneapolis; before leaving he paid the doctors $ 150 and some other bills at Jamestown. His hands were then in a bad condition; bandaged, flesh raw, and fingers constricted. At Minneapolis he continued to receive there medical treatment, and, finally, in August, 1915, three more fingers, the second and third finger on the left hand, and the second finger on the right hand, were amputated. In September, 1915, he had then about $ 700 of the settlement money; in December, 1915, about $ 400, and the last of it, he spent in April, 1916. He made no complaint to anyone about the settlement except to his attorneys, and the defendant did not know about any complaint that he had concerning the settlement until he started suit, in October, 1916. To the complaint of the plaintiff alleging negligence, the defendant interposed an answer alleging, in addition to contributory negligence and assumption of risk, the release made, as a bar to the action.
In the trial court the verdict was directed for the defendant; from the judgment rendered thereupon the plaintiff has appealed. The appellant specifies error of the trial court in directing a verdict, upon the ground that the evidence presented a question of fact for the jury upon mistake of fact and in law, of fraud and deceit, of undue influence and fraudulent representations, in the procurement of the release.
In view of our consideration and determination of these specifications, it will be unnecessary to consider other specifications urged.
The appellant testified and claims that at the time of the settlement he had not consulted with any lawyers; that he was advised by the claim agent that he could go to work about August 15, 1915; that the claim agent said that the doctor had told him that his fingers would be all right and that he could go to work at that time; that the manager of the defendant advised him to settle; that it would be better for him to settle because the insurance company would beat him in court; that he had no case; that he also told him that his fingers would come back and that he could use pliers as well as ever; that the claim agent told him that he had talked to his lawyers and that if he went to law he would not get anything, because it was a mere accident and he had no case; and, further, that they would carry the case to the Supreme Court of the United States, and would spend $ 20,000 before they would give him $ 1, in order to beat him; that the plaintiff was scared; that he relied on these statements and so made the settlement; that he first found out that his fingers would have to be amputated when he went to Minneapolis; that after his three fingers were amputated in Minneapolis, he then discovered that he was mistaken as to the extent of his injuries; that then he did not have the money to go back; that he spent the money received in living expenses. The evidence discloses that the plaintiff was working for the Northern State Power Company at Minneapolis, at a wage of $ 65 per month since November 6, 1916 (trial had June 25, 1917), and was also conducting a small confectionery store. The plaintiff did not restore nor offer to restore the consideration paid in the settlement, or any part of the same. Under the evidence, in the month of August, 1915, at least in September, 1915, he knew his condition and knew then the truth or falsity of the alleged statements made to him to induce settlement; he then had about $ 700 of the settlement money; then or thereafter, knowing the facts, he neither complained to the defendant, offered to restore, or even sought to restore, any of the money he then had.
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