McLinn v. Noll

• Court: South Dakota Supreme Court
• Writing for the Court: SMITH, J.
• Citation: McLinn v. Noll, 65 S.D. 440, 274 N.W. 833 (S.D. 1937)
• Decision Date: 01 September 1937
• Docket Number: 8028
• Parties: MYRTLE G. McLINN, Respondent, v. FRED W. NOLL, Appellant.

65 S.D. 440

274 N.W. 833

MYRTLE G. McLINN, Respondent,

v.

FRED W. NOLL, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Charles Mix County, SD Hon. A. B. Beck, Judge #8028—Reversed James R. Bandy, Armour, SD Attorney for Appellant. F. B. Morgan, Wagner, SD Attorney for Respondent. Opinion filed Sept 1, 1937 Modified on Denial of Rehearing October 6, 1937.

SMITH, J.

On the evening of the 22d day of November, 1933, while walking along the public sidewalk in front of the premises of defendant, plaintiff was tripped by a wire and suffered a broken wrist and other injuries. Thereafter she brought this action, alleging that defendant had constructed a single wire fence across the front of his premises running parallel with the public sidewalk; that thereafter he permitted the said wire to become loose and to remain in an unrepaired condition for a long period; that said wire did remain in an unrepaired condition for a sufficient length of time prior to the event as to require the repair thereof on the part of the defendant in the exercise of reasonable diligence; and that as a result of the negligence on the part of defendant to repair the wire, a part thereof became broken, extended upon the sidewalk, and tripped the plaintiff to her damage. At the close of the testimony, the defendant moved for a directed verdict upon the theory that the evidence was wholly insufficient to establish the alleged negligence of defendant. The motion was denied, and the jury returned a verdict for the plaintiff for the sum of $750. Thereafter, the defendant moved for judgment not withstanding the verdict, and for a new trial. Both motions were denied, and the matter is brought here for review under assignments questioning the sufficiency of the evidence to support the rulings of the court and the verdict of the jury.

Did the court err in overruling the motion for a directed verdict? Manifestly, plaintiff must by proof connect her injury with the specific charge of negligence contained in her complaint. Wright v. Sioux Falls Traction System, 133 N.W. 696. In determining the sufficiency of plaintiff’s proof, we assume that the evidence of the plaintiff is true, and draw all permissible inferences from that evidence favorable to plaintiff. Clinkscales v. Wisconsin Granite Company, 160 N.W. 843.

At the outset, we dispose of the contention of plaintiff that negligence may be inferred from the circumstances by the application of the doctrine of res ipsa loquitur. It is elementary that such doctrine can have no application unless the facts of the particular case reveal such an accident as does not commonly occur, except as the result of negligence of a defendant having the exclusive management of the offending instrumentality. Common experience teaches that strands of wire do become suddenly broken through the operation of diverse outside forces having no relation to the conduct of the owner of the fence in which they are placed. In such an instance, no obligation rests upon defendant until he gains actual knowledge of the condition, or until the lapse of time requires repair in the exercise of ordinary care for the protection of others in the management of his property. He is not an insurer against injury. 25 CJ p. 1040, § 51. Obviously, the wire involved in the instant case could have broken, and the unfortunate accident could have occurred, within a period of time all too short to have given rise to any duty on the part of the defendant. It does not logically follow, from proof of plaintiff’s injury through the instrumentality of the broken wire, that the duty to repair had arisen. According to the common experience of men, the thing does not speak for itself.

The defendant is the owner of a residence property in Geddes, S.D., located on the southeast corner of a block. The house faces east, and a cement public sidewalk extends along the entire east frontage of the property. Another cement sidewalk connects the public walk with the house at a point approximately 38 feet north of the southeast corner. There is no cement walk along the south side of the property, and the public traveled along that side of the property over a path. At the intersection of the path along the south side of the property and the public sidewalk along the east side of the property, a tree is located just inside the walk. Another tree is located just inside the walk at the intersection of the public walk along the east side of the property and the walk leading into the house. At some time prior to the, accident, the defendant constructed the fence in question by...