Prefontaine v. Great Northern Railway Company, a Corp.

Decision Date12 June 1924
Citation199 N.W. 480,51 N.D. 158
CourtNorth Dakota Supreme Court

Appeal from the District Court of Ward County, Lowe, J.


Murphy & Toner, for appellant.

The courts universally hold that the statute of limitations is a meritorious defense and that it is error to deny a requested amendment seeking to set up this defense. Ann. Cas. 1914A 24, note; Lilly-Beckett Co. v. Sonneman (Cal.) 106 P. 715; Routs v. Bartle (S.D.) 85 N.W. 591; Newton v. McGee (S.D.) 140 N.W. 252.

The Federal law applying the rule on assumption of risk is that the employee not only assumes the ordinary risks of the business but also defects created by the negligence either of master or fellow servants that are obvious, or that he becomes aware of before injury. Hough v. R. Co. 100 U.S. 213; Southwestern Brewery v. Schmidt, 226 U.S 162; Seaboard Air Line v. Houton, 233 U.S. 504.

McGee & Goss, for respondent.

That nondelegable duty is imperative as it is unavoidable and remains upon the master throughout the employment. The master cannot escape it under the fellow-servant rule, because there is no fellow servant in legal significance in the matter of furnishing tools unsafe with which to work; such otherwise fellow servant becomes a vice principal. These principles may be found established in: U. P. R. Co. v. Marone, 159 C. C. A. 190; Choctaw R. Co. v. McKade (U.S.) 48 L.Ed. 95; Armour Co. v. Hahn (U.S.) 28 L.Ed. 440; Seaboard Am. Line Co. v. Horton (U.S.) 58 L.Ed 1062; Gunn v. Standard Oil Co. (C. C. A.) 275 F. 932.

"The defendant is not entitled as a matter of right to amend his answer upon the trial so as to set up a new and added defense and the trial court, under § 7482, Comp. Laws, 1913, is only authorized to grant permission to do so when such permission would be in furtherance of justice."

"Where upon the trial the court refuses to permit an amendment to the answer which sets up a defense, which, under the peculiar facts of the case is purely technical, and at the close of the trial the Judge sets aside a verdict for the plaintiff, and allows such amendment, and orders a judgment entered for the defendant notwithstanding the verdict and notwithstanding the fact that the evidence in support of the amendment was objected to, the supreme court, if it reverses such judgment notwithstanding the verdict on an appeal taken, will take into consideration the technical nature of the defense in determining whether the cause should be remanded to the district court with leave to perfect the motion for a new trial and in order that such defense may be pleaded and interposed and whether the remanding of the cause for such purpose would be in furtherance of justice." Ennis v. Ins. Co. 33 N.D. 20, 156 N.W. 234.

"The propriety of allowing the amendment rests very largely in a discretion of the trial court depending upon the circumstances of the particular case." Ann. Cas. 1914A, 16.




This is a suit to recover for personal injuries alleged to have been received the latter part of January, 1923, by plaintiff while employed by the defendant at its coal docks in Minot, this state. Trial was had to a jury and resulted in a verdict of $ 750 for plaintiff, on which judgment was duly entered.

At the conclusion of plaintiff's case and also when both sides rested, defendant made separate motions for a dismissal and for a directed verdict upon the grounds that no negligence had been proved and that plaintiff had failed to prove the material allegations of his complaint. Both motions were denied. Later, the defendant moved for a new trial, or, in the alternative, for judgment non obstante upon the grounds that the trial court erred in refusing to permit defendant to amend its answer at the conclusion of the defendant's case and before it rested, so as to allege assumption of risk, insufficiency of the evidence, and excessiveness of the verdict. This motion was denied and defendant appeals.

The complaint is in the ordinary form, the ground of negligence being failure on the part of the defendant to supply the plaintiff with reasonably safe tools and appliances with which to work, in this, that a pick necessarily used by the plaintiff in unloading coal and breaking the same into pieces of proper size had a split handle. It is alleged that plaintiff continued to use the pick in this defective condition because of the promise of defendant to supply a sound pick, which promise, however, was not performed and plaintiff alleges that as a result of defendant's negligence in this regard his hand was injured. The defendant answered, denying the material allegations of the complaint. Assumption of risk was not alleged. The defendant in this court asserts that the reason for not setting up the defense of assumption of risk was that the statements of all of the witnesses and of the plaintiff himself, made before the action was commenced, indicated that there was no liability because of no negligence and that, therefore, there was no proper place in the answer for the defense of assumption of risk. This explanation of the failure to allege that defense was not urged upon the trial court when the application to amend was denied. Defendant sought to amend to conform with the proof after all of the testimony had been introduced, but the trial court refused to permit the amendment. This is one of the errors assigned on this appeal. It is further contended by the appellant that the evidence is insufficient to support a finding of negligence and that in any event the verdict is excessive.

The facts may be somewhat briefly summarized as follows: The plaintiff had been employed by defendant off and on for some years at Minot. On the 22d of January, 1923, and for a long time prior thereto, the plaintiff was engaged in unloading coal at the coal docks in Minot. The only instruments used by the plaintiff and other employees engaged in the same work were a pick and crowbar. At the time of the injury and for some time prior thereto it was a part of the duty of the plaintiff to break the coal into pieces, using the pick and perhaps sometimes the crowbar for that purpose. The coal would come frozen in large chunks that had to be broken before it was fit for use.

It appears that there was a day and night shift with about three men, including a foreman, constituting each shift. It further appears, from the undisputed testimony, that the same instrumentalities, that is, picks and bars, were used by both shifts. Plaintiff, at the time of the injury, was earning about $ 115 a month when he worked steadily. The plaintiff claims to have been disabled by reason of the injury for a period of about four months following the 31st of January, 1923; that the injury to the hand caused him some pain when he tried to use it. It does not appear in the testimony, either of the plaintiff himself, his physician, or of any other witness, that there was any external or superficial indication of injury.

The foregoing is not disputed. The plaintiff testified...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT