Rippetoe v. Feely
| Decision Date | 22 November 1911 |
| Citation | 119 P. 465,20 Idaho 619 |
| Parties | JOHN RIPPETOE, Respondent, v. CHARLES FEELY, Appellant |
| Court | Idaho Supreme Court |
JUROR-CHALLENGE-WAIVER-NONSUIT-WAIVER-SUFFICIENCY OF EVIDENCE-PERSONAL INJURIES-CONTRIBUTORY NEGLIGENCE.
(Syllabus by the court.)
1. Where if is charged upon appeal that the trial court erred in overruling a challenge to a juror and the record does not show that the party complaining was compelled to use one of his peremptory challenges upon the juror challenged for cause, and was thereby deprived of a peremptory challenge, it will be presumed that he was not compelled to exercise all of the peremptory challenges allowed him by law, and for that reason could not have been prejudiced by the action of the trial court in denying the challenge for cause.
2. Where a motion is made for a nonsuit at the close of the evidence on the part of the plaintiff upon the ground that the evidence is insufficient to warrant the submission of the cause to a jury, and the motion is denied, and evidence is thereafter offered by the defendant, the ruling of the trial court upon the motion is not reviewable upon appeal from the judgment or from the order overruling the motion for a new trial.
3. In an action to recover for personal injuries where contributory negligence is plead as a defense, the plaintiff cannot recover when it is proven by the evidence that the negligence of the plaintiff was a proximate cause of the injury notwithstanding the fact that the evidence may also show negligence on the part of the defendant.
4. To prevent a recovery by reason of contributory negligence, the person injured must be guilty of a want of ordinary care, and it must appear that such want of care was a proximate cause of the injury. The negligence or want of care, however, of the injured person need not be the sole proximate cause of the injury, for that would exclude all negligence on the part of the defendant, and there would be no reason for the application of the rule of contributory negligence on the part of both parties.
5. In an action for personal injury received by the plaintiff at the hands of a defendant, if the evidence shows that the plaintiff contributes to the injury by a want of ordinary care in placing himself in a dangerous position and where he might be injured, and does not exercise ordinary care in preventing the accident after he so placed himself in such position, then the mere fact that the defendant was negligent would not relieve the plaintiff from the effect of his contributory negligence, unless it also appears that the defendant after discovering plaintiff's dangerous position could have avoided the consequences of the plaintiff's negligence; that is, could have avoided the injury which took place by the exercise of ordinary care.
6. It is the duty of the appellate court to set aside the verdict of a jury where there is no evidence to sustain it or where it is against the law given to the jury by the court, and if the appellate court is satisfied that but one conclusion can be deduced from the evidence and that conclusion is that the negligence of the plaintiff was a proximate cause of the injury and that the injury would not have occurred had the plaintiff exercised ordinary care, then in such case a verdict for plaintiff for personal injuries must be set aside.
APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.
An action for personal injuries. Judgment for the plaintiff. Judgment reversed.
Judgment reversed and a new trial granted. Costs awarded to appellant.
Chas L. Heitman, and E. N. La Veine, for Appellant.
Even if defendant was guilty of gross negligence, contributory negligence bars a recovery. (See cases cited in 37 Cent Dig., Neglig., sec. 85 (a); Neal v. Gillett, 23 Conn. 437.)
A man cannot place himself in a position of known danger (as did plaintiff in the case at bar), and recover for an injury resulting therefrom. (Chicago & A. R. Co. v. Murphy, 17 Ill.App. 444; Robinson v. Manhattan Ry. Co., 5 Misc. 209, 25 N.Y.S. 91; Brown v. Milwaukee St. Ry. Co., 22 Minn. 165.)
"Inasmuch as it was apparent from the evidence of the plaintiff that he could, by the exercise of ordinary care, have avoided, not only the injury, but the consequences to himself of the negligence of the defendant, even if such negligence was shown, he was not entitled to recover."
Where there are two methods by which a service may be performed, one perilous and the other safe, an employee who voluntarily chooses the perilous rather than the safe one cannot recover for an injury thereby sustained. (Hoffman v. Am. Foundry Co., 18 Wash. 287, 51 P. 385; Stratton v. Nichols Lumber Co., 39 Wash. 323, 109 Am. St. 881, 81 P. 831; Jenkins v. Maginnis Cotton Mills, 51 La. Ann. 1011, 25 So. 643.)
A verdict which law does not authorize upon the evidence, because not justified therefrom, is contrary to law.
Thomas Mullen, for Respondent.
Where the evidence is such that different minds may reasonably draw different conclusions as to contributory negligence, the question is for the jury. (29 Cyc. 631 et seq., and cases cited.)
This rule will not be affected by the fact that plaintiff was the only witness in his behalf. (Scholl v. Broadway R. Co., 137 N.Y. 566, 33 N.E. 339, affirming 63 Hun, 629, 17 N.Y.S. 755.)
This is an action to recover damages for personal injuries. The complaint alleges that at the time of the happening of the injury, the defendant was the owner and engaged in the operation of a steam-threshing outfit; that on the 26th day of August, 1910, and for some time prior thereto, the plaintiff was employed by the defendant, and during said employment and immediately prior to receiving the injuries in the performance of his duty, he was engaged in moving certain bundles of grain lying under the wheels of the separator, and which was necessary to be removed in order to allow said separator to be hauled away and forward by said traction engine; and that while plaintiff was so engaged the defendant was in charge of the operation of the engine, and without giving plaintiff any warning of his intention so to do started up said engine attached to said separator suddenly and violently, knowing at the time, or could have known with the exercise of reasonable care, that the plaintiff was in a dangerous position and liable to be injured, but regardless thereof the defendant suddenly hauled and propelled said separator over and across and upon the person of the plaintiff and caused the tongue of said separator to be dropped upon the plaintiff and the plaintiff to be run over by the separator and thereby injured, and thereby damaged the plaintiff in the sum of $ 15,000. The complaint further alleges that $ 300 was paid out on account of the injuries and for surgical and medical attendance and medicine. The answer of the defendant puts in issue the allegations of the complaint, admits the plaintiff's employment by the defendant, and alleges that the plaintiff was an expert machinist, and that it was the plaintiff's duty, among other things, to set, care for, level, plumb, and put in place the separator, and to direct and supervise the other help and assistants among the threshing crew, whose duty was to assist and help in connection with and about the separator and to give the engineer all needed and necessary signals to go either forward or backward or for any purpose whatever; that on the 26th day of August, 1910, the plaintiff being in charge of the separator and supervisor of the help, and while engaged in and about the setting of the separator and putting it in readiness and in position to thresh certain grain, and the defendant being in charge of the engine, the plaintiff signaled the defendant to back the engine in the direction of the separator for the purpose of detaching the separator; that the defendant moved the engine as directed in the direction of the separator and immediately received a signal from the plaintiff to move forward said engine, and directed the defendant to go ahead; that the defendant thereupon moved the engine forward, and the plaintiff having failed to detach or cause the separator to be detached from the engine, as it was his duty, the separator was moved forward; and upon information and belief alleges that suddenly after giving defendant the signal to move forward and advising him to go ahead, the plaintiff carelessly and negligently stepped directly in front of the separator and next to the front axle and beneath the feed-box of the separator, and was in a stooping position and reached into the...
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