Goulet v. O'Keeffe

• Decision Date: 09 July 1957
• Docket Number: No. 7601,7601
• Citation: 83 N.W.2d 889,36 A.L.R.2d 8
• Parties: Joseph GOULET, Plaintiff and Respondent, v. Eugene O'KEEFFE, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 889

83 N.W.2d 889

Joseph GOULET, Plaintiff and Respondent, v. Eugene O'KEEFFE, Defendant and Appellant.

No. 7601.

Supreme Court of North Dakota.

July 9, 1957.

Syllabus by the Court.

1. In an action for damages for injury on account of alleged negligence of the defendant, failure of proof of negligence entitles the defendant to a dismissal of the action.

2. When but one conclusion can reasonably be drawn from the evidence the question of negligence becomes a question of law for the court.

3. In the instant case it is held, for reasons stated in the opinion, that there is no competent evidence in the record establishing actionable negligence on the part of the defendant, and that defendant is entitled to judgment for dismissal of the action notwithstanding the verdict of the jury.

Hubert S. Cayley, Walhalla, Arthur W. Stokes, of Day, Stokes, Vaaler & Gillig, Grand Forks, for plaintiff.

J. Gerald Nilles of Nilles, Oehlert & Nilles, Fargo, William T. Depuy, of Depuy & Fair, Grafton, Francis J. Magill, Fargo, for defendant.

SATHRE, Judge.

This is an action brought by the plaintiff, a farm laborer, against the defendant, his employer, a farmer in Pembina County, North Dakota. The plaintiff had been employed by the defendant as a farm laborer for a period of twelve or thirteen years. The farm of the defendant was what is called a mechanized farm. That is tractors of different types were used as the power in operating the various kinds of farm machinery. In his work for the defendant the plaintiff had operated various types of tractors used upon the farm. Certain parts of the defendant's farm were covered with brush and trees which had to be uprooted and removed before the land could be prepared for farm cultivation. The complaint alleges that on the 4th day of November 1952 the plaintiff was engaged in certain hazardous work at the direction of the defendant which work consisted of clearing timber and brush from a part of defendant's land. That the defendant provided the plaintiff with a tractor with a bulldozer blade for the purpose of moving uprooted trees and brush into heaps to be later burned. The complaint further alleges that it was the duty of the defendant to provide safe, suitable and sufficient equipment and helpers for the work to be done because such work was hazardous to life and limb to those engaged therein to a much greater extent than ordinary farm work; that the said defendant negligently and carelessly failed to provide the proper equipment and necessary safety devices and carelessly failed to give proper instructions to the plaintiff, as to the hazards connected with the work to be done by him; that as a direct result of the defendant's careless and negligent breach of his duty a tree which the plaintiff was attempting to remove rolled and fell upon the plaintiff and severely injured his arm and hand resulting in great pain and suffering and permanently disabling the said arm and hand to the plaintiff's great damage in that he has ever since been unable to perform the work by which he made his living or any work whatsoever, and that said disability would continue for the remainder of his life. Plaintiff then demands damages for the expense of medical treatment for loss of wages incurred to date, for future loss of wages, and for pain and suffering.

The defendant answered admitting that he employed the plaintiff on and before November 4, 1952; but he denies specifically that the equipment consisting of a tractor with dozer blade was in any way inadequate or dangerous and denied that the same was not equipped with necessary safety devices. Defendant further alleges that if there were any hazards or dangers in connection with the work which the plaintiff undertook to do that the risks connected therewith were the ordinary risks incidental to said employment and that the defendant knew or should have known of said hazards and risks and assumed the same. The answer further alleges that if the accident occurred as alleged in plaintiff's complaint, that it was proximately and solely caused by the negligence and carelessness of the plaintiff and that such negligence contributed thereto.

The case was tried to the court and a jury in the city of Cavalier in Pembina County, North Dakota. The trial resulted in a verdict for the plaintiff in the sum of $25,000.

At the close of plaintiff's case the defendant moved for a directed verdict for a dismissal of plaintiff's action upon the grounds that the plaintiff had wholly failed to prove any actionable negligence on the part of the defendant; that the evidence showed as a matter of law that if there was any risk or hazard in connection with the work the plaintiff had been doing such risk or hazard was assumed by the plaintiff and that the evidence conclusively showed that the accident and injury resulting therefrom was proximately caused by the contributory negligence of the plaintiff. The motion was denied. At the close of all of the evidence the defendant moved for a directed verdict for the dismissal of the plaintiff's action upon practically the same grounds upon which his motion was made at the close of plaintiff's case.

The motion was denied and the case was submitted to the jury and a verdict was returned for the plaintiff. Thereafter and within ten days after rendition of the verdict the defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial. The motion was denied and the defendant appealed in accordance with Section 28-1510, NDRC 1943 as amended by Chapter 204, S.L.N.D. 1951 which provides:

'In denying a motion for a directed verdict the court shall be deemed to have submitted the action to the jury subject to a later determination of the questions of law raised by the motion. Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment notwithstanding the verdict entered in accordance with his motion for a directed verdict. * * *'

The defendant having appealed from the order of the trial court denying his motion for judgment notwithstanding the verdict, it will be necessary to examine the evidence as to its sufficiency to support the verdict. The defendant assigns numerous errors, which may be stated as follows:

1. That the verdict of the jury is against the evidence and the law, and that the plaintiff has wholly failed to show or prove any negligence on the part of the defendant which proximately caused the accident and injury of which the plaintiff complains.

2. That the undisputed evidence shows affirmatively that the plaintiff assumed the risk and hazard of the employment in which he was engaged at the time of the accident, and that the assumed risk and hazard, if any, were the cause of the accident.

The acts of negligence of the defendant alleged by the plaintiff are as follows, and will be considered in the order stated:

Failure to furnish additional helpers in and about the place where plaintiff was injured.

Failure to provide guards as a safety device upon the tractor plaintiff was operating at the time of the accident.

Failure to provide a larger and more powerful tractor for the work plaintiff was doing.

Failure to give plaintiff proper instructions as to the hazards of the work in which he was engaged.

With reference to the alleged failure of the defendant to furnish helpers for the plaintiff in operating the tractor, there is no evidence whatsoever in the record that such helpers were needed or that it was the custom or practice in the community for the operators of tractors to have the assistance of helpers. Nor is there any evidence or showing in the record as to the kind of assistance a helper could give an operator of a tractor.

It is next contended that the defendant was negligent in failing to provide guards as a safety device upon the tractor that plaintiff was operating at the time of the accident.

One Dewey Callaway, a witness for the plaintiff, testified in substance as follows:

He was employed by a contractor who was engaged in building roads, brushing and timber work, curbing and road work. He operated tractors with dozers and scrapers. He had operated tractors for eleven years and during the last seven years he operated a tractor to which was attached a...