Ruehl v. Lidgerwood Rural Tel. Co.

• Citation: 135 N.W. 793,23 N.D. 6
• Parties: RUEHL v. LIDGERWOOD RURAL TELEPHONE CO.
• Decision Date: 15 March 1912
• Court: United States State Supreme Court of North Dakota

23 N.D. 6

135 N.W. 793

RUEHL

v.LIDGERWOOD RURAL TELEPHONE CO.

Supreme Court of North Dakota.

March 15, 1912.

Syllabus by the Court.

Where, in the making of an improvement, it is manifest that injury is likely to result, unless due precautions are taken, a duty rests upon him who causes the work to be done to see that such necessary precautions are taken.

Where a telephone company contracts with a laborer to dig holes in the dooryard of a house, under a contract to furnish a telephone to the occupant of such house, and into which holes some one else is to place the telephone poles when the proper time comes, it is a legal duty of such company to properly safeguard such holes; and it is immaterial whether the laborer who digs the same is a servant or an independent contractor.

There is a distinction between the liability for injuries resulting from the work which is intrusted to be done and the liability for injuries occasioned by wrongful and careless acts done in connection with some collateral work or matter.

There is a natural presumption that every one will act with due care; and it cannot therefore be imputed to a plaintiff as contributory negligence that he did not anticipate culpable negligence on the part of the defendant.

It is not contributory negligence, as a matter of law, for a mother to allow her children to play in the dooryard while a telephone is being put in the house, and the necessary poles are being erected for the purpose. At the most, the question is one for the jury, and not for the court.

In a suit, under the statute, for damages to the parents, occasioned by the death, by wrongful act, of a child 3 1/2 years of age, where there is proof that the child, at the time of the accident, was in good health, it is not necessary to a recovery of damages that mortality tables shall be introduced in evidence, in order to prove the life expectancy of the deceased. Such tables are admissible, both at the common law and under section 7303, R. C. 1905; but their introduction is not indispensable. The courts also may take judicial notice of such tables, and may instruct the jury accordingly.

The question as to whether it was negligence for a telephone company to leave unguarded a telephone pole hole 4 1/2 feet in depth and 20 inches square, in the dooryard of a farmhouse, in which its servant knew that children were playing, is a proper matter for determination by the jury, under all of the circumstances of the case.

A child 3 1/2 years of age cannot itself be charged with contributory negligence.

Appeal from District Court, Richland County; Allen, Judge.

Action by Louis Ruehl, administrator of the estate of Louis Ruehl, Jr., against the Lidgerwood Rural Telephone Company. From a judgment on a directed verdict for defendant, plaintiff appeals. Reversed and remanded.

This is an action brought under the statute by Louis Ruehl, the father of and the administrator of the estate of Louis Ruehl, Jr., deceased, for and on behalf of the father and mother and sisters of the deceased, to recover damages for the death of the said Louis Ruehl, Jr., alleged to have been occasioned by the defendant by carelessly and negligently leaving a telephone post hole “without placing any guards over or above the same, and without taking any precaution of any kind to avoid” the accident. The evidence is to the effect that on or about the 1st day of April, 1910, one L. J. Christenson was president and manager of the defendant telephone company; that at about such time the company arranged to extend its line past the house of the plaintiff and to put a telephone therein; that the dwelling house of the plaintiff stood about four rods from the east end of the section line, on which was laid out a traveled highway; that before the holes in which the telepone poles were to be set were dug defendant telephone company had caused the necessary poles to be hauled and placed along the route of the proposed extension, at about the places where the same were to be set, and had caused the places where it was proposed to have the holes dug marked or designated by sticks or broken lath; that on or about the 1st day of April, 1910, Christenson, on behalf of the telephone company, employed one Frank Zimmerman to dig a line of post holes along the said extension, and agreed to pay him 12 1/2 cents for each hole; that Christenson told said Zimmerman what to do, and supplied him with the tools, and told him how to do the work; that the post holes were to be 4 1/2 feet deep, and that this depth was directed by Christenson; that the spade used by Zimmerman was given to him by Shulke, the employé of the company who marked the holes; that the arrangement was that Zimmerman should dig a line of holes from Lidgerwood out about two miles, and the line of poles ran down alongside the highway for about a mile; that he commenced digging at the city limits and worked due east a mile, and in the evening had to go home, so took his tools over to Ruehl's house, and went horseback to town, and started at Ruehl's place and worked towards town; that, after finishing up that mile, he commenced next morning at Ruehl's house, and worked back and met the holes dug before; that the whole job was about 2 1/2 miles long; that his arrangement with Christenson was that he should dig that line of holes, and should be paid therefor at the rate of 12 1/2 cents per hole, to be paid when the job was finished and accepted by the company; that at the time of the accident plaintiff's family consisted of himself, his wife, and five children, the oldest child being at the time ten years of age, and the youngest about one year; that the deceased child was aged three years and five months; that on the day of the accident the weather was warm, and plaintiff's children were playing about the house and in the dooryard; that on the said day Frank Zimmerman dug a hole in which to insert one of the telephone poles, about four rods directly east from the plaintiff's house, and on or near the west edge of the said public highway; that the hole was partly in the highway and partly to the west, on plaintiff's land; that it was about 4 1/2 feet deep and 20 inches across; that, when completed, this hole was left uncovered and unguarded; that Zimmerman finished this hole about a quarter after 8 in the morning; that he saw the children about 10 minutes before he completed it; that when he had completed the hole he proceeded to dig another one about 10 rods from the first one; that they were with him when he dug the third hole, the second one from the one in question; that after he finished they walked with him a ways; that he did not put anything over the holes, or guard them in any way; that about 10 or 15 minutes before the child was found in the hole the children were with Zimmerman, and about three-quarters of an hour from the time that he finished digging the first hole; that the plaintiff talked to Zimmerman 2 or 3 minutes while he was digging the first hole, and left when he had the hole about half done; that he then went into the field to work; that when he left, Zimmerman was still digging at the first hole; that when he left for the fields the children were all at home; that he thought they were in the house; that he did not see them in the yard; that Zimmerman did not say anything about covering the hole; that he (Ruehl) did not think or say anything about covering the hole; that the child was a bright, good, and healthy boy, and was his only son, and had never been sick; that Mrs. Ruehl was working in the house; that she saw Zimmerman digging the hole; that she knew that the telephone company was about to extend its line to the house; that she did not know how deep the hole was going to be dug-nobody had told her anything about it; that she did not miss her children at any time; that she could hear them talking in the yard, and supposed they were all right; that about an hour after the first hole had been dug the deceased, Louis Ruehl, Jr., fell into the first hole head first, and was either drowned, or smothered in the mud.

After the close of plaintiff's testimony, the defendant moved for a directed verdict, on the grounds (1) that there was no actionable negligence on the part of the defendant; (2) contributory negligence on the part of the parents of the deceased child; (3) that the hole in which the child lost its life was not dug by a servant of the defendant, but by an independent contractor. This motion was granted, and from the judgment dismissing the action this appeal is taken.

W. S. Lauder, of Wahpeton, for appellant. Purcell & Divet, of Wahpeton, for respondent.

BRUCE, J. (after stating the facts as above).

[2] The first question to be determined is whether the defendant, at the time of the accident, was acting through a servant, or by means of an independent contractor. On this point, John L. Matthews, the vice president of the company, testifies that Mr. Christenson was the vice president, and had charge of and was general manager of the construction work; that the company employed Shulke to mark the places where the holes were to be dug; that no one was employed by the company to dig them. Frank Zimmerman, on the other hand, testifies that “Christenson employed me to dig that hole. I spoke for the job, and he offered me so much a hole, and I did that. Christenson offered me so much a hole, and I accepted the proposition on certain terms. He paid me 12 1/2 cents for each hole. I worked for the telephone company off and on all summer. My directions were that the holes should be 4 1/2 feet. I asked Christenson, and that is what he told me the depth was. I put no guard around the first hole I dug. I made arrangements with Christenson. The arrangement was that I should dig the line of holes from Lidgerwood out to the place, about two miles, and that line of holes ran down along the side of the railway for about a mile. My arrangement with Christenson...