Loonan Lumber Co. v. Wannamaker
| Decision Date | 22 October 1964 |
| Docket Number | No. 10176,10176 |
| Citation | 131 N.W.2d 78,81 S.D. 51 |
| Parties | LOONAN LUMBER COMPANY, a Corporation, Plaintiff and Respondent, v. Silas E. WANNAMAKER, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Braithwaite, Cadwell & Braithwaite, Sioux Falls, for defendant and appellant.
Danforth, Danforth & Johnson, Sioux Falls, for plaintiff and respondent. HOMEYER, Judge.
In this negligence action tried to the court plaintiff was awarded damages. Defendant appeals from the judgment. The single issue for review is whether the evidence is sufficient to sustain a finding of negligence.
Defendant was an employee of the South Dakota Highway Department and on June 4, 1963, was engaged in mowing weeds along U.S. Highway No. 77, north of Sioux Falls. The mowing unit consisted of a small tractor with power take-off pulling an attached rotary mower. The rotor blade was five feet in diameter; there were shields or guards on the sides and front of the mower and an opening in the rear which would discharge cut grass, weeds and debris. The mower operated at a constant speed of 540 r. p. m.'s, which was the governed speed of the tractor.
Plaintiff owns and operates a lumber yard located west of and adjacent to said highway in the area where defendant was working. Several large thermo-pane windows are on the east side of what appears to be an office and display building. There are several gravel surfaced approaches or driveways from the highway to plaintiff's premises and other nearby businesses with drainage culverts underneath. The boundaries of the highway, approaches and driveways are slanted for drainage and safety, and directly east of the north window form a small irregular oval-shaped ditch or depression where grass and weeds will grow. The evidence fixes the depth of this depression at from 2 to 4 feet and the distance from the bottom of the window to the center of the ditch at about 75 feet. Defendant admits that the described mowing unit while being operated by him in such ditch, propelled a rock through plaintiff's window causing the damage complained of. However, he maintains the evidence shows no negligence on his part and intimates that although plaintiff might have a cause of action against either the manufacturer of the mower or against defendant's employer, or against both, it does not have a cause of action against him. We do not concern ourselves with possible liability of other parties.
The rule is well recognized that a servant is accountable for injury to third persons caused by his own negligence and the fact that his master may also be liable for the same tort under the doctrine of respondeat superior, or under some other applicable doctrine, does not in itself relieve the servant from liability. It is not the contract of the master with the servant which exposes the servant to, or protects him from, liability to third persons and liability does not arise from the master and servant relationship. The servant's liability arises from his breach of a duty, owed to a third person under the law, or, as sometimes said, from the servant's common-law obligation to use that which he controls as not to injure another. 57 C.J.S. Master and Servant § 577; 35 Am.Jur., Master and Servant, § 584; Restatement of the Law, Agency 2d § 350. A servant is not liable to third persons for negligence of his master as regards instrumentalities which the servant does not operate or which are not under his control, but he is answerable for his own negligence in the use and control of such instrumentalities. See McBain v. Lang, 56 N.D. 630, 218 N.W. 641.
Negligence has been defined as the failure to exercise ordinary care or, as some prefer to say, due care under the circumstances. It is the failure to use such care as an ordinarily prudent or reasonable person would use under the same or similar circumstances. The care required is and must be commensurate to existing and surrounding hazards. Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153. What is due care under the circumstances is generally a question of fact and depends upon the attendant circumstances in each case.
Proof of an accident with resultant injury or damage in itself does not create a presumption or permit an inference of negligence...
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...as to the foreseeability thereof. Ward v. LaCreek Elec. Ass'n, 83 S.D. 584, 588, 163 N.W.2d 344, 346 (1968); Loonan Lumber Co. v. Wannamaker, 81 S.D. 51, 131 N.W.2d 78 (1964). ...
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...rocks and debris causing injury to nearby bystanders. The existence of such duty is further substantiated in Loonan Lumber Co. v. Wannamaker, 81 S.D. 51, 131 N.W.2d 78 (1964), in which case the operator of a mowing unit operated in in such a way so as to propel a rock through the window of ......
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