Platt v. Meier

• Citation: 153 N.W.2d 404,83 S.D. 10
• Decision Date: 25 October 1967
• Docket Number: No. 10328,10328
• Parties: Grace M. PLATT, Plaintiff and Respondent, v. Josef MEIER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 404

153 N.W.2d 404

83 S.D. 10

Grace M. PLATT, Plaintiff and Respondent, v. Josef MEIER, Defendant and Appellant.

No. 10328.

Supreme Court of South Dakota.

Oct. 25, 1967.

Overpeck, Hamblin & Mueller, Walter Mueller, Belle Fourche, for plaintiff and respondent.

Bangs, McCullen, Butler & Foye, Thomas E. Simmons, Rapid City, Charles R. Hayes, Deadwood, for defendant and appellant.

BIEGELMEIER, Judge.

Plaintiff sues for injuries received as a volunteer actor or super in the Passion Play produced by defendant. The facts and some of the issues involved in this appeal generally appear in the dissenting opinion except for some details of the evidence which will be added in the course of the opinion. Defendant seasonably moved for a directed verdict in much detail on the grounds plaintiff failed to establish as a matter of law that defendant was negligent in failing to provide a safe area or erect a fence, or that failure thereof was the proximate cause of plaintiff's injuries; that plaintiff assumed the risk thereof; that her injuries were caused by the negligence of fellow servants and her own contributory negligence. This motion and one for judgment n.o.v., made after a jury verdict for plaintiff, were denied. Defendant's appeal assigns and the brief argues that such denials were erroneous.

It being undisputed plaintiff was a gratuitous employee, she is excluded from the provisions of the Workmen's Compensation Law, Schmeling v. Jorgensen, 77 S.D. 8, 84 N.W.2d 558, and neither party is subject to any of its provisions. The defenses of contributory negligence, assumption of risk and the fellow servant rule are available to defendant. Schmeling v. Jorgensen, supra; Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528; 35 Am.Jur., Master and Servant, § 334.

There seems to be some uncertainty and confusion of the negligence charged in this action. The complaint claimed only 'the proximate cause of Plaintiff's injury was Defendant's negligence in failing to provide a safe area for said pageant and failing to guard said area with suitable fence or guard rail.' ¹ Plaintiff's injuries occurred in the crucifixion scene as she and other participants were screaming, yelling and running down the path, so the topography and physical aspects of the area will be described in that sequence. Plaintiff testified she was standing on a grassy area on the lower plateau in front of the higher crucifixion plateau during that scene. This grassy area appears to be smooth and level at the top and over ten feet wide; it proceeds down along the edge of the hill on what is referred to in the testimony as a 'path', however, it appears to be at least eight feet wide with the usual cut bank on the left side and a 45 slope of the hill on the right side; it then makes roughly a U-turn to the right with a large open space on the outside of the turn to accommodate the participants and permit Roman guards on horses to leave the procession as they go up the hill. The surface changes to gravel at this U-turn and proceeds down below and along side the described grassy area, path and slope mentioned. The distance from the lower plateau to the U-turn is not clear--it appears to be a five-foot decline over a distance of 20 or 30 feet. Plaintiff further testified on cue she moved about 15 or 20 steps over the grassy plateau area to go down toward the U-turn and was near the side of this grassy area above the slope of rocks and undergrowth when the two boys ran into her. She fell down this slope along the path seven or eight feet to a place on the inside edge of the U-turn. By moving to the edge of the path she had thereby also put herself on the edge of the slope.

On the one side of this path the hill was the built-in wall; the outside was not then, nor had it ever been, guarded by a fence or railing. On the construction and condition of the plateau, plaintiff's brief admits it

'was apparent to anyone observing the area and it was equally observable to the Plaintiff. As to this fact there was no superior knowledge thereof on the part of either Plaintiff or the Defendant. That, however, is not the issue.' ²

The evidence compels that conclusion as to plaintiff's knowledge there was no fence or railing for she testified:

'Q * * * you * * * participated in the Golgotha Hill scene knowing there was no railing * * *

'A Oh, I'd never seen it. * * * I had no reason to believe that it was (a dangerous situation).'

Defendant also testified 'it was not' a dangerous spot. By plaintiff's own admissions she had taken part in over 250 performances for some 24 or 25 years and knew there was no railing alone the path. Plaintiff is bound by her own statements and cannot make a stronger case than her own testimony establishes. Ford v. Robinson, 76 S.D. 457, 80 N.W.2d 471.

It is the duty of the master to furnish his servant with a reasonably safe place to work. We have so held. Stoner v. Eggers, supra, also Schmeling v. Jorgensen, 77 S.D. 8, 16, 84 N.W.2d 558, 563, and Voet v. Lampert Lumber Co., 70 S.D. 142, 15 N.W.2d 579, which uses the phrase 'a reasonably safe place'; Olson v. Kem Temple, A.A.O.M.S., 77 N.D. 365, 43 N.W.2d 385; and 35 Am.Jur., Master and Servant, §§ 138 and 183. Other courts are in accord, 35 Am.Jur., Master and Servant, § 183. ³ That has been held to be the basis of recovery for a paid domestic employee, Gordon v. Clotsworthy, 127 Colo. 377, 257 P.2d 410, 49 A.L.R.2d 314, and others. See also the annotation in 49 A.L.R.2d 320, footnote 6.

A master cannot be held liable for failure to furnish a reasonably safe place to work if the condition or so-called danger is so obvious and is before the servant's eyes to such an extent that he must know by the use of ordinary intelligence the possible danger that confronts him. Stoner v. Eggers, supra, and Ecklund v. Barrick, S.D., 144 N.W.2d 605. Our holding is the lack of guardrail was a condition that existed, was not the proximate cause of plaintiff's injuries, and that by voluntarily continuing to take part in the pageant she accepted or assumed the risk of injury from the lack of guardrail. In this sense assumption of risk bars recovery because there was no breach of the master's duty, no actionable fault on the part of the master, and, hence, no cause of action. Maher v. Wagner, 62 S.D. 227, 252 N.W. 647.

Restatement, Second, Agency, seems to be in accord with these conclusions.

' § 492. General Rule

'A master is subject to a duty that care be used either to provide working conditions which are reasonably safe for his servants and subservants, considering the nature of the employment, or to warn them of risks of unsafe conditions which he should realize they may not discover by the exercise of due care.'

' § 499. Risks Inherent in Enterprise

'A master who has preformed his duties of care is not liable to a servant harmed by a risk incident to the nature of the work.'

' § 521. Servant's Assumption of Risk

'In the absence of a statute or an agreement to the contrary, a master is not liable to a servant for harm caused by the unsafe state of the premises or other conditions of the employment, if the servant, with knowledge of the facts and understanding of the risks, voluntarily enters or continues in the employment.'

Comments under this section not only clarify it, but place the burden of proof on plaintiff:

'Comment:

'a. * * * Although a master has neither used care to make the premises safe nor care to warn his employees that they are not safe, and although he has no reason to believe that the employees know of the lack of safety, he is not liable to employees who in fact know of the conditions and realize the danger therefrom (unless by sections 522--524 not here applicable)

'c. * * * The risk * * * may exist at the beginning of the employment or it may arise subsequently because of changed conditions.

'd. Burden of proof. In maintaining an action against a master for failing to provide conditions of safety, a servant harmed thereby must allege and prove, not only that the master had reason to believe that the conditions were unsafe, but also that the servant had no knowledge thereof. * * *'

Plaintiff voluntarily chose to continue in this part of the play ⁴ and we agree with the statement in her brief that the construction and condition of the plateau, including the lack of guardrailing, was not an issue upon which to base a conclusion defendant was negligent in that respect.

Eliminating the lack of guardrail as negligence, and therefore the proximate cause of plaintiff's injuries, leaves only that she was knocked down by the two boys. This was the immediate cause of her injuries and thus the proximate cause. Schmeling v. Jorgensen, 77 S.D. 8, 18, 84 N.W.2d 558, 564. It is undisputed they all were members of the cast engaged in the same common employment and so fellow servants. The common law defense that the injuries were caused by the negligence of a fellow servant or employee being available to defendant, such negligence gives rise to no cause of action against the employer by an employee so injured. 35 Am.Jur., Master and Servant, § 334. The fellow servant doctrine is stated in that text to be:

'There is, perhaps, in the law of master and servant, no more firmly established common rule than the one which absolves the employer from liability to one engaged in his employment for injuries incurred or suffered solely as the result of the negligence, carelessness, or misconduct of others who are in the service of the employer and who are engaged in the same common or general employment as the injured employee.'

Restatement, Second, Agency, announces the rule in § 474 as:

'A master is not liable to a servant * * * who * * * is injured solely by the negligence of a fellow servant * * *'

subject to some exceptions not applicable--one being liability of a master for non-delegable duties. These non-delegable duties are explained in later sections in 35 Am.Jur., Master and Servant, and...