Lindenberg v. Folson

• Decision Date: 30 November 1965
• Docket Number: No. 8244,8244
• Citation: 138 N.W.2d 573
• Parties: Annabelle L. LINDENBERG, Plaintiff and Respondent, v. Dennis FOLSON, Aldis Folson, Jolanda Folson, and Alice Jean Folson, doing business as Leonard Folson and Company; and Lockwood Graders of North Dakota, Inc., a corporation, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 573

138 N.W.2d 573

Annabelle L. LINDENBERG, Plaintiff and Respondent, v. Dennis FOLSON, Aldis Folson, Jolanda Folson, and Alice Jean

Folson, doing business as Leonard Folson and

Company; and Lockwood Graders of North

Dakota, Inc., a corporation,

Defendants and Appellants.

No. 8244.

Supreme Court of North Dakota.

Nov. 30, 1965.

Syllabus by the Court

1. Upon an appeal to the Supreme Court from a judgment rendered in an action not triable de novo upon appeal, neither errors of law not appearing on the face of the judgment roll nor the sufficiency of the evidence may be reviewed in absence of specifications of error.

2. The only question before the appellate court on appeal from an order denying a motion for judgment notwithstanding the verdict is whether the motion for directed verdict should have been granted had the court not been prohibited from granting the same because of Rule 50(a), North Dakota Rules of Civil Procedure.

3. Ordinarily, negligence and proximate cause are questions of fact for the jury. They become questions of law only when the evidence is such that ordinarily intelligent, reasonable, and fair-minded men, in the exercise of reason and judgment, can draw only one conclusion; but if the evidence is such that ordinarily intelligent, reasonable, and fair-minded men, in the exercise of reason and judgment, may draw different conclusions from the evidence and circumstances, as to the facts or deductions to be drawn from the facts, then they are questions of fact for the jury.

4. In reviewing the sufficiency of the evidence upon an appeal from an order of the trial court denying a motion for judgment notwithstanding the verdict, the appellate court views the evidence in the light most favorable to the verdict and resolves conflicts in testimony against the movant.

5. A motion for judgment notwithstanding the verdict admits the truth of the evidence given by the party against whom the verdict is asked to be directed, and also admits inferences and conclusions which can reasonably be deduced from such evidence.

6. It is the duty of an employer to furnish his employees with reasonably safe machinery, tools, and appliances.

7. An employer has a duty to warn and instruct an inexperienced employee who has a lack of capacity to appreciate the danger or dangers incident to the work which in not obvious to him.

8. A manufacturer of a chattel owes a duty to the user, although there is no privity of contract between them, to design and manufacture the chattel so as to make it reasonably safe for the use for which it was intended.

9. A manufacturer of a chattel owes a duty to the user, although there is no privity of contract between them, to inform the user of the chattel of any dangerous condition and character of the chattel when put to the use for which it was manufactured and sold where such danger is known or reasonably should have been known by the manufacturer in the exercise of ordinary care.

10. A motion for a new trial presents no question as to whether evidence is sufficient or insufficient to sustain a verdict unless the moving party presents with, and as a part of, his motion for new trial specifications of the insufficiency of the evidence described by statute. Section 28-18-09, N.D.C.C.

11. Where a motion for new trial is made, errors of law, including errors in instructions not specified in the motion for new trial, are waived. Section 28-18-09, N.D.C.C. DePuy, Fair & O'Connor, Grafton, for Dennis Folson, Aldis Folsin, Jolanda Folson, and Alice Jean Folson, doing business as Leonard Folson & Co.

Grimson & O'Keefe, Grafton, for Lockwood Graders of North Dakota, Inc.

Ringsak & Webb, Grafton, for Annabelle L. Lindenberg.

TEIGEN, Judge.

The defendants have separately appealed from an order denying a judgment notwithstanding the verdict and new trial and from the judgment.

The plaintiff seeks to recover damages for personal injuries sustained when her hand and arm were caught and injured in a potato-harvesting machine upon which she was working. She has sued her employer, the defendant Folson, and the manufacturer of the potato-harvesting machine, the defendant Lockwood. The plaintiff's claims are based on negligence in that her employer failed to provide a safe and suitable machine and that the defendant Lockwood designed, manufactured, and sold the machine which was imminently and inherently dangerous to life and limb.

The defendants admit the occurrence of the injury, deny the plaintiff's allegations of negligence, allege that the plaintiff was contributorily negligent or that she assumed the risk.

The case was tried to a jury and it returned a verdict in favor of the plaintiff in the amount of $15,184.68, against both defendants, upon which judgment was entered.

We shall first consider the appeal from the judgment. Section 28-18-09, N.D.C.C., provides that a party desiring to appeal from a judgment of the district court in an action not triable de novo in the Supreme Court is required to serve with the notice of appeal:

'a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the verdict or that the evidence is of such character that the verdict should be set aside as a matter of discretion, he shall so specify. A specification of insufficiency of the evidence to sustain the verdict * * * shall point out wherein the evidence is insufficient and it shall be proper to include in such specification, specifications of facts conclusively established, together with the facts claimed not to be established, in such manner as to show intelligibly wherein, on the whole case, the verdict * * * is not supported by the evidence.'

In Mills v. Roggensack, N.D., 92 N.W.2d 722, we said:

'Upon an appeal to the supreme court from a judgment rendered in an action not triable de novo upon appeal neither errors of law not appearing on the face of the judgment roll nor the sufficiency of the evidence may be reviewed in the absence of specifications of error.'

See also Ripplinger v. Otten, 77 N.D. 531, 44 N.W.2d 60.

In this case neither appellant served specifications of error with the notice of appeal from the judgment and none was been served or filed. It is not claimed that any errors appeared on the face of the judgment roll. The appeal from the judgment presents nothing for this court to review.

Each defendant moved for a directed verdict at the close of all of the evidence and each adopted the grounds of the other. The motions were resisted by the plaintiff and the trial court denied both motions and submitted the issues to the jury. The jury returned a verdict in favor of the plaintiff and against both defendants and they each moved in the alternative for judgment notwithstanding the verdict or a new trial. The trial court denied the motions.

A motion for judgment notwithstanding the verdict calls for a review of the grounds assigned in support of the motion for a directed verdict. Hanson v. Fledderman, N.D., 111 N.W.2d 401; Leach v. Kelsch, N.D., 106 N.W.2d 358; Westerso v. City of Williston, 77 N.D. 251, 42 N.W.2d 429.

The only question before the appellate court on an appeal from an order denying a motion for judgment notwithstanding the verdict is whether the motion for a directed verdict should have been granted had the court not been prohibited from granting the same because of Rule 50(a), N.D.R.Civ.P Hanson v. Fledderman, N.D., 111 N.W.2d 401.

The defendant Lockwood disigned and manufactured the potato harvester and sold it to the defendant Folson who grows potatoes. The plaintiff was employed by the defendant Folson to work on the harvester as it was being used to harvest potatoes. The harvester is pulled by a tractor which also supplies the power through its power take-off to operate a hydraulic motor on the harvester. The potatoes are dug, using another machine, and left on the ground in rows. The potato-harvesting machine is then pulled along the row of potatoes and picks the potatoes from the top of the ground and elevates them into a truck which is driven alongside the harvester. The harvester has several conveyors on which the potatoes are carried before they are deposited in the truck. These conveyors are powered by the hydraulic motor. The harvester will also pick up potato vines and lumps of dirt and carry them with the potatoes on its conveyors. Platforms are strategically located beside the conveyors. Three to five employees stand on the platforms and pick the potato vines, lumps of dirt, spoiled potatoes, and any other foreign matter by hand and drop them to the ground. This is a cleaning or separation operation and only good potatoes should be elevated into the truck.

The plaintiff was a crew member on the machine and, at the time she sustained her injury, she was standing on the platform at the rear of the machine. She was facing one of these conveyors which, because it is relatively level, is called the 'picking table.' The number of crew members working on the harvester, at a particular time, varies with the amount of foreign material being picked up by the harvester. Sometimes two crew members occupy the rear platform but at the time of the accident the plaintiff was working at the picking table alone.

After the potatoes leave the picking table, they move to a conveyor which elevates and deposits them into the truck as it is being driven alongside. The harvester moves along the row of potatoes being picked the length of the field and then returns picking the next row of potatoes. The employees rotate positions at each end of the field. Thus the picking of potatoes from the ground by the harvester, the elevating of the potatoes, and the removal of the foreign material by the crew members all occur simultaneously as the harvester is being pulled over the field. The conveyors, including the picking table, are activated and run by a series of sprocket wheels connected with chains, one...