Nelson v. Scherling
| Decision Date | 05 November 1941 |
| Docket Number | 6777 |
| Citation | 300 N.W. 803,71 N.D. 337 |
| Court | North Dakota Supreme Court |
Rehearing Denied November 25, 1941.
Syllabus by the Court.
A motion for judgment notwithstanding the verdict does not go to the weight of the evidence. In case of an adverse verdict the evidence is considered in the light most favorable to the party obtaining the verdict; and where, upon the whole record, there is no issue of fact to submit to the jury, so that the moving party would be entitled to judgment as a matter of law, the motion for judgment notwithstanding the verdict should be granted. However, if, upon the whole record, it is reasonable to believe the defects in the evidence may be supplied upon a new trial, so as to present an issue for the jury, the trial court should deny the motion for judgment notwithstanding the verdict, and grant a new trial, when the motion is made in the alternative.
Appeal from District Court, Cass County; P. G. Swenson, Judge.
Action by Tilda Nelson against A. R. Scherling and Sophia Scherling to recover for personal injuries. From an order denying a motion for judgment notwithstanding a verdict for plaintiff the defendants appeal, and from an order granting a new trial, the plaintiff appeals.
Order granting new trial affirmed.
Emanuel Sgutt, for appellants-respondents.
Where the facts are undisputed, are sufficient to determine the issues involved, and are such that the jury can return but one proper verdict, it is the duty of the trial court to order judgment notwithstanding the verdict in accordance with these facts, when an improper verdict has been returned. Volk v. Hirning, 56 ND 937, 220 NW 446; Northern Trust Co. v. Havelock Equity Exch. 51 ND 346, 199 NW 763; Miller v. Bank of Harvey, 22 ND 538, 134 NW 745.
In a personal injury action, where it appears affirmatively from the uncontradicted testimony of the plaintiff that the proximate cause of the injury was the plaintiff's own negligence, a motion for judgment notwithstanding the verdict should be granted by the trial court. Johnson v Mau, 60 ND 757, 236 NW 472; Snyder v. Northern P.R. Co. 69 ND 266, 285 NW 450.
A landlord is not deemed the principal of his tenant nor responsible for his torts, active or negligent. 16 RCL 590; 32 Am Jur 669, Landlord and Tenant.
The landlord owes no duty to look after the leased premises. A tenant commonly takes premises as he finds them with no duty on the part of the landlord to look after their safety. Lunde v. N.W. Mutual Sav. & L. Asso. 59 ND 575, 231 NW 609; Sikori v. Fellowcraft Club, 189 Mich. 235, 155 NW 495; Szyca v. Northern Light Lodge, 199 Minn 99, 271 NW 103; Cooper v. Lawson, 139 Mich. 628, 103 NW 168.
The duty of the owner to maintain in a safe condition a building that is a public building under the statute extends only to such parts as are used by the public or by tenants in common. Grossenbach v. Devonshire Realty Co. 218 Wis 633, 261 NW 742; Gobar v. Val Blatz Brewing Co. 179 Wis 256, 191 NW 509; Bewley v. Kipp, 202 Wis 411, 233 NW 71; 16 RCL 1073; Robinson v. Leighton, 30 ALR 1386.
Every person is bound to the exercise of vigilance with a view to the discovery of perils by which he may be menaced, and their avoidance after they have been ascertained. 20 RCL 111; Evans v. Ortenburger, 242 Mich. 57, 217 NW 755.
Burnett, Bergeson & Haakenstad, for respondent-appellant.
The rule that the principal is not liable for the contractor's torts is inapplicable to cases where the contractor is intrusted with the duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned. Wharton, Agency, § 485; Dillon v. Hunt, 11 Mo.App. 246, 16 SW 516.
The principle is universally recognized that where a duty is incumbent upon one to do a particular work, he cannot escape liability for its negligent performance by committing its execution to an independent contractor. Bloecher v. Duerbeck (Mo) 90 ALR 40; Ruehl v. Teleph. Co. 23 ND 6, 135 NW 793.
It is only in the clearest cases, where the facts are undisputed and it is plain that all reasonable men can draw but one conclusion from them, that the question of contributory negligence becomes one of law. Guthrie v. Brown, 192 Minn 434, 256 NW 898; Axelson v. Jardine, 57 ND 524, 223 NW 32; Swift v. Kenbeck, 289 Mich. 391, 286 NW 658; Dreyer v. Otter Tail Power Co. 205 Minn 286, 285 NW 707; Morrison v. Lee, 16 ND 377, 113 NW 1025.
Where one by the negligence of another, is compelled to choose instantly, in the face of grave peril, between two or more hazards, he is not guilty of contributory negligence, even though the one he selects results in injury, and he might have escaped if he had chosen another. 20 RCL 134; Elmore v. Des Moines City R. Co. 207 Iowa 862, 224 NW 28; Myler v. Bentley, 226 Mich. 384, 197 NW 521.
Where a person attempts to rescue another imperiled by the negligence of another, contributory negligence must amount to a case of extreme recklessness. 20 RCL 131; Perpich v. Leetonia Min. Co. 118 Minn 508, 137 NW 12; Saylor v. Parsons, 122 Iowa 679, 98 NW 500. Whether he acted recklessly in the judgment of prudent persons, is for the jury's determination. 20 RCL p 132, § 108.
Herein we consider two appeals -- an appeal by defendants from an order denying a motion for judgment notwithstanding the verdict, and an appeal by plaintiff from an order granting a new trial.
In the amended complaint, the plaintiff seeks to recover damages for injuries received through the explosion of an oil burner furnace, alleging that the explosion was caused through the carelessness and negligence of the defendants in failing to keep the burner in good repair and working order, and the burner was part of its heating plant in a house owned by defendants and under their management and control.
In the amended answer, defendants deny that at the time of the occurrence of the injuries, they had possession of, or any control over, the premises upon which the alleged injuries occurred, or control or possession of the oil burner or furnace alleged to have caused the injuries; deny ownership, and also that the plaintiff suffered any damages because of any negligence or carelessness on their part; and allege that whatever damages plaintiff suffered were caused by her own contributory negligence and want of care.
A verdict was returned for the plaintiff, and thereupon the defendants moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial.
The defendants assert the evidence shows conclusively there is no liability on their part, and, on motion for a new trial:
The assignments of error upon which this motion was based set forth four instances of the refusal of the court to give requested instructions to the jury; alleged error of the court in instructing the jury, in denying a motion for directed verdict, permitting counsel for the plaintiff to argue certain matters to the jury, and in overruling objection to the testimony of a witness; five specifications of the insufficiency of the evidence; and the action of the court in permitting the plaintiff to amend her complaint after the trial.
On the hearing, the court denied the motion for judgment notwithstanding the verdict, but granted the alternative motion for a new trial.
A litigant defeated in the trial court may make a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, and under the provisions of § 7643 of the Supplement, this court may order judgment to be entered "on appeal from the whole order denying such motion when made in the alternative form whether a new trial was granted or denied by such order." See Welch Mfg. Co. v. Herbst Department Store, 53 ND 42, 48, 204 NW 849, 852.
On defendants' appeal, we are limited in our review to a consideration of whether the appellants have shown that the trial court erred in denying judgment notwithstanding the verdict.
Consequently, so far as defendants are concerned, we do not consider whether the court erred: in refusing to give certain instructions to the jury, in instructing the jury, in admitting testimony objected to, or in the matter of the conduct of counsel. If the court erred, as alleged, these errors have been corrected by the court itself in granting a new trial.
On a review of an order denying a motion for judgment notwithstanding the verdict, this court is limited to a consideration of the evidence. If the record is such that there was some issue of fact to submit to the jury, and the jury rendered a verdict thereon, then it is clear the motion for judgment notwithstanding the verdict should be denied.
It is not necessary to review the decisions of this court setting forth the principle involved. Such motion will not be granted where there is an issue for the jury to pass upon under the evidence, as it does not go to the weight of the evidence. In passing upon such matter, the evidence is considered in...
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