Olson v. Kem Temple Ancient Arabic Order of Mystic Shrine

• Citation: 49 N.W.2d 99,78 N.D. 263
• Decision Date: 27 August 1951
• Docket Number: No. 7256,7256
• Parties: OLSON v. KEM TEMPLE ANCIENT ARABIC ORDER OF MYSTIC SHRINE.
• Court: United States State Supreme Court of North Dakota

Page 99

49 N.W.2d 99

78 N.D. 263

OLSON v. KEM TEMPLE ANCIENT ARABIC ORDER OF MYSTIC SHRINE.

No. 7256.

Supreme Court of North Dakota.

Aug. 27, 1951.

Syllabus by the Court.

1. Upon an appeal from an adverse judgment and from an order denying a motion for judgment notwithstanding the verdict, the only question with respect to the sufficiency of the evidence is whether the appellant was, upon the record, entitled to judgment in his favor as a matter of law.

2. Upon review of the trial court's order denying a motion for judgment notwithstanding the verdict this court will take the view of the evidence most favorable to the party against whom the motion was directed.

3. The 'simple tool doctrine' is not applicable where the employer who furnished the tool has actual knowledge of a defect in the tool which is unknown to the employee or where the employer knows that the tool is dangerous to use for a particular purpose and fails to warn the employee of the defect or danger.

4. The evidence in this case was sufficient to warrant a finding by the jury that the defendant employer had actual knowledge that the stepladder furnished to the plaintiff employee was defective, that no warning of any kind was given to plaintiff and that one of the defects in the ladder of which defendant had actual knowledge, to wit: defective steps, was the defect which caused plaintiff's injury.

5. Questions of negligence and contributory negligence are questions of fact unless the evidence is such that only one conclusion can be deduced therefrom.

6. Evidence which shows that plaintiff examined a ladder which was furnished to him, took hold of it on each side and shook it to see if it was steady, but failed to discover a defect which was not observable by visual inspection does not establish contributory negligence on the part of plaintiff as a matter of law.

Day, Lundberg, Stokes, Vaaler & Gillig, Grand Forks, for defendant and appellant.

Shaft & Benson, Grand Forks, for plaintiff and respondent.

PER CURIAM.

This is a negligence action which has been twice tried by a jury. At each trial, the jury rendered a verdict in favor of the plaintiff for money damages for personal injuries received by him in falling from a defective stepladder while decorating the interior of a pavilion preparatory to a social function given by the defendant, a fraternal corporation.

At the trial of this action defendant moved for a directed verdict. This motion was denied and after the jury returned a verdict for the plaintiff, defendant moved for judgment notwithstanding the verdict. This motion was also denied and defendant has appealed both from the order denying the motion for judgment non obstante and from the judgment entered in the case. Upon such an appeal only the correctness of the trial court's ruling on the motion for judgment notwithstanding the verdict may be reviewed and the correctness of that ruling depends upon whether the moving party was entitled to a directed verdict at the time the motion for a directed verdict was made. Weber v. United Hardware & Implement Mutuals Co., 75 N.D. 581, 31 N.W.2d 456; Olson v. Ottertail Power Co., 65 N.D. 46, 256 N.W. 246, 95 A.L.R. 418; Westerso v. City of Williston, 77 N.D. 251, 42 N.W.2d 429. The sole question therefore is whether the evidence in the case warranted the direction of a verdict. Rokusek v. National Union Fire Ins. Co., 50 N.D. 123, 195 N.W. 300; First Security Bank of Raleigh v. Bagley Elevator Co., 61 N.D. 140, 237 N.W. 648. And in reviewing the trial court's ruling upon such a motion this court will take the view of the evidence most favorable to the party against whom the motion was directed. Haser v. Pape, 77 N.D. 36, 39 N.W.2d 578; Schantz v. Northern Pac. Ry. Co., 42 N.D. 377, 173 N.W. 556; Thompson v. Smith, 45 N.D. 479, 178 N.W. 430.

Plaintiff and all of the witnesses to the accident were members of the defendant fraternal corporation. At the time of the accident they were engaged in decorating a pavilion which was being prepared for the entertainment of an important guest. The plan of decoration called for the hanging of long streamers from a center wire, so as to create a tent effect. The center wire extended the length of the pavilion, about 100 feet. The wire was fastened at each end and in the center of the building. It sagged between the ends and the center. In affixing the streamers to the wire plaintiff used a stepladder provided by the defendant. The ladder was a portable set of flat steps, countersunk into grooves in the side pieces, which were 14 feet long. It was constructed of pine or fir lumber. The steps and side pieces were of the same thickness, 3/4 of an inch and also of the same width, 3 3/4 inches. The ladder was old having been acquired by the defendant, secondhand, in 1931. According to the testimony it was 'wobbly' and 'rickety'.

Plaintiff used this ladder for about an hour before his injury. He began hanging streamers at one end of the pavilion, working toward the center. At the center the wire, to which the streamers were attached, was higher and it was necessary for him to go one step higher on the ladder than he had previously gone. For the first time he stepped on the next higher step. It was...