Krueger v. North American Creameries
| Decision Date | 22 February 1947 |
| Docket Number | 6984. |
| Court | North Dakota Supreme Court |
Rehearing Denied May 14, 1947.
Syllabus by the Court.
1. Motion for a new trial because of the insufficiency of the evidence is addressed to the sound discretion of the trial court, and its decision thereon will not be set aside unless there has been a manifest abuse of discretion.
2. One who entered a building with occupant's servant for the purpose of purchasing commodities from the occupant and of assisting the servant in transporting the commodities from the place where they were stored to his car in accordance with a tacit or expressed understanding with the servant was an invitee of the occupant of the premises.
3. Occupant of a building has the duty of exercising reasonable or ordinary care to avoid accidents or injuries to invitees entering such building.
4. Operator of a freight elevator is required to use only reasonable care in its maintenance and operation but the character of the instrumentality will be considered in determining what amounts, in a given case, to reasonable care.
5. Reasonable care in the operation of an elevator requires an inspection of the elevator with such frequency and by persons with such knowledge and experience as should be reasonably required in view of the danger and risk inherent in its operation.
6. The simultaneous failure of three automatic safety devices upon a freight elevator warrants an inference of lack of reasonable care in its maintenance and operation.
7. The unexplained failure or refusal of a party to produce evidence, particularly within his knowledge and control, and which would have an important bearing upon the facts in dispute, warrants the inference that it would be unfavorable to his contention.
8. Upon consideration of the evidence in this case it is held The granting of a new trial as to the defendant, North American Creameries, was well within the limits of the sound discretion of the trial court but that the evidence does not justify a new trial as to the defendant, Pucket.
J. K. Murray, of Bismarck, for plaintiff and respondent.
Cox, Cox & Pearce, of Bismarck, for defendants and appellants.
In this action plaintiff sought to recover for injuries alleged to have been received by him while riding as a passenger upon a freight elevator in a warehouse leased and operated by the defendant, North American Creameries. He alleged that the defendant, North American Creameries had been negligent in failing to keep the elevator in a condition which made it safe for use and in employing an incompetent and improper person to operate it. As to the defendant, Ben Pucket plaintiff alleged only that he operated the elevator in a careless and negligent manner. The defendants answered separately, denying generally all of the allegations of the complaint. Trial of the case resulted in a verdict and judgment for the defendants. Thereafter, upon motion by the plaintiff, the trial court made its order granting a new trial. Defendants have appealed from that order.
The order granting a new trial sets forth: 'This order is based upon the following grounds, among others:
'1. Errors of law occurring at the trial.
'2. Insufficiency of the evidence to justify the verdict and the judgment of the court, and that the verdict and judgment are against law.
In his memorandum opinion, however, the trial judge makes it clear that the principal ground for the order was his conclusion that the verdict and judgment were contrary to the preponderance of the evidence. We therefore think it proper to consider first, appellant's specification that the trial court manifestly abused its discretion in granting a new trial upon that ground. Appellant recognizes, and properly so, that a motion for a new trial, because of the insufficiency of the evidence, is addressed to the sound discretion of the trial court, and its decision thereon will not be set aside unless there has been a manifest abuse of discretion. This rule is firmly established in the decisions of this court. Johnson v. Patterson, 67 N.D. 132, 270 N.W. 97; Dakota Digest, Appeal and Error, k979(1), 979(2).
At the time plaintiff was injured he was a farmer. On the evening of August 3, 1943, he had come to Carrington, his market place, upon a shopping trip. Among other things he wished to buy some ground turkey feed. To purchase this feed he went to the plant of the defendant North American Creameries. He arrived at the creamery after regular business hours and found the night man, the defendant Ben Pucket, in charge. Pucket's duties included the making of sales to persons who came after regular business hours and he had thus accommodated the plaintiff upon several previous occasions. Plaintiff inquired if he could buy some turkey feed. Pucket informed him that he could if plaintiff would take him to a warehouse in another part of town where the particular type of feed was stored. Plaintiff agreed and they drove to the warehouse together. It was a one story building with a basement. It contained a freight elevator to lift heavy loads from the basement to the main floor. Upon arriving, plaintiff and Pucket entered the building together. Plaintiff proceeded to the basement by way of a stairway and Pucket brought the elevator down to the basement level. In the basement Pucket and plaintiff loaded ten one hundred pound sacks of feed upon a two wheel cart and together they pushed it upon the elevator. It is conceded that Pucket could not have pushed the loaded truck upon the elevator without plaintiff's help. For the trip back to the main floor both men entered the elevator.
At this point in the narration of facts it seems proper to consider the nature of the relationship of the plaintiff to the defendant, North American Creameries. As to the evidence set forth above there is no conflict. Pucket and the plaintiff differ, in some respects, as to what they said to each other but they are in complete agreement upon what they did, and upon the fact that what they did was in accord with the common practice in the community. Upon this evidence the trial court held that, at the time and place in question, plaintiff was the invitee of the North American Creameries. In our view this holding was correct. There is a dispute as to whether there was an express invitation. The plaintiff said there was and Pucket said there was not. However, when Pucket was asked, 'Did you think it strang that he (the plaintiff) was doing that without you asking him?' he replied, 'No, it wouldn't be strange, he had done that before at the plant; he would go along with me and help get it.' Whether plaintiff was expressly invited or not, it is apparent that Pucket expected him to enter the premises and understood that no express invitation was necessary. Furthermore plaintiff's purpose in entering the premises was for the mutual benefit of himself and the occupant. In our opinion these circumstances give rise to an implied invitation. 38 Am.Jur. 760, 45 C.J. 812; Printy v. Reimbald, 200 Iowa 541, 202 N.W. 122, 205 N.W. 211, 41 A.L.R. 1423; Shawnee v. Drake, 69 Okl. 209, 171 P. 727, L.R.A.1918D, 810; Pomerantz v. Pennsylvania-Dixie Cement Corp., 214 Iowa 1002, 243 N.W. 283.
As a general rule the occupant of a building has the duty of exercising reasonable or ordinary care to avoid accidents or injuries to invitees entering upon the premises. 38 Am.Jur. 760, 45 C.J. 823, 824. The duty of an occupant of a building to exercise ordinary care on behalf of invitees also applies to the maintenance and operation of freight elevators. In Ford v. Crigler, 74 S.W. 661, 662, 25 Ky.Law Rep. 56, the court said:
'These appellees, being in the possession of and in control of this storehouse for their benefit, were bound to use care and diligence, proportioned to the risk, to keep their premises and elevator at least reasonably safe for the access and use of those coming there by their invitation, express or implied, on any business to be transacted or permitted by them, or for any other purpose beneficial to them.'
In Le Foe v. Corby, 38 App.D.C. 54, it was said:
'While the operator of a freight elevator is required to use only reasonable care and diligence to keep it safe, the inherently dangerous...
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