Severinson v. Nerby

• Decision Date: 05 August 1960
• Docket Number: No. 7897,7897
• Citation: 105 N.W.2d 252
• Parties: Harold L. SEVERINSON, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau, Plaintiff and Respondent, v. Tom NERBY, d/b/a Nerby Construction Company, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 252

105 N.W.2d 252

Harold L. SEVERINSON, Individually and as Trustee for the North Dakota Workmen's Compensation Bureau Plaintiff and Respondent, v. Tom NERBY, d/b/a Nerby Construction Company, Defendant and Appellant.

No. 7897.

Supreme Court of North Dakota.

Aug. 5, 1960.

Rehearing Denied Oct. 3, 1960.

Syllabus by the Court

1. On motion for judgment notwithstanding the verdict evidence must be construed most favorably to the plaintiff, and such motion admits the truth of inferences and conclusions which can reasonably be deduced from such evidence.

2. Defendant's negligence is never presumed merely from proof of the accident, but must be affirmatively proved.

3. For the plaintiff to be held to be a gratuitous employee of the defendant, there must be evidence that the defendant, expressly or impliedly, requested plaintiff's help.

4. A 'volunteer' is one who, on his own initiative, undertakes to do something which he is not legally or morally obligated to do and which is not in pursuance or protection of his own personal interests.

5. Contributory negligence is an affirmative defense which must be pleaded, and upon which the defendant had the burden of proof.

6. As a general rule, findings of the jury on questions of negligence and contributory negligence will not be disturbed on appeal. But where the evidence is such that only one inference can fairly and reasonably be drawn therefrom, the question becomes one of law to be determined by the court.

Robert A. Alphson, Grand Forks, for plaintiff and respondent.

Degnan, Hager, McElroy & Lamb, Grand Forks, for defendant and appellant.

STRUTZ, Judge.

The defendant appeals from a judgment for the plaintiff and from an order denying a motion for judgment notwithstanding the verdict in an action brought by the plaintiff for personal injuries alleged to have been suffered by reason of the negligence of the defendant.

The defendant had contracted to pourconcrete footings and to erect concreteblock walls for a new filling station being built by the Farmers Oil Company of Reynolds. In performing the terms of the contract the defendant was acting as an independent contractor, and not as an employee of the oil company. In carrying out the terms of the contract a concrete mixer had been hauled to Reynolds by the defendant, and at the time of the accident the defendant had started mixing concrete.

The plaintiff was an employee of the Farmers Oil company and was not a hired employee of the defendant. He was present at the construction site as such employee of the oil company since the contract provided that the oil company was to furnish tanks and water necessary for such construction.

After commencing to mix concrete the defendant asked the plaintiff if the Farmers Oil Company had a grease gun, the grease gun ordinarily used for greasing the mixer having been left in Grand Forks. The plaintiff thereupon inquired what the defendant wanted such grease gun for and was told, 'For the mixer.' The plaintiff testified that he then went into the station and returned with a small grease gun in his hand which he claims to have held up and said to the defendant, 'This is the only one we have.' The defendant does not recall having heard this statement, but the plaintiff, although he admits that defendant made no reply, says that the defendant was looking in plaintiff's direction at the time he held up the grease gun. The plaintiff thereupon walked over to the mixer, passing between the defendant and the machine, and started to grease it.

When the plaintiff attempted to grease the mixer with the small grease gun his left hand was caught in the gear of the mixer, as a result of which his little finger and the ring finger on his left hand were seriously mangled and later were amputated.

The plaintiff admits that he was at the site of the accident as an employee of the Farmers Oil Company, and that his duties included furnishing water and overseeing the work of pouring the footings and the walls for the oil company. The plaintiff further admits that no one asked him to grease the mixer; that he was asked if he had a grease gun; that he secured a grease gun owned by the Farmers Oil Company and held it up to show it to the defendant, stating: 'This is the only one we have'; and that he attempted to grease the mixer and in doing so held the grease gun in his right hand, pushing the plunger with his left hand. It is conceded that no one requested him to grease the machine and that the greasing was his own idea.

The case was submitted to the jury on two theories:

1. That the plaintiff was a gratuitous employee and that the defendant owed him ordinary care; and

2. That the plaintiff was a volunteer and that the defendant owed him only slight care.

The jury returned a verdict for the plaintiff in the sum of $17,500. After the verdict, the defendant moved for judgment notwithstanding the verdict, which was denied. This appeal was taken from the judgment and from the order denying the motion for judgment notwithstanding the verdict.

The plaintiff contends that the defendant was negligent in failing to bring a proper grease gun from Grand Forks when the equipment was moved to Reynolds for carrying out the contract in question, and that the defendant further was negligent in that he failed to warn the plaintiff of the danger of greasing the mixer.

This court repeatedly has held, on motion for judgment notwithstanding the verdict and on appeal from a judgment by the defendant, that the evidence must be construed most favorably to the plaintiff and that such motion for judgment notwithstanding the verdict admits the truth of inferences and conclusions which can reasonably be deduced from such evidence. Mischel v. Vogel, N.D., 96 N.W.2d 233; Schantz v. Northern Pac. R. Co., 42 N.D. 377, 173 N.W. 556; Pundt v. Huether, N.D., 100 N.W.2d 431. Thus, in considering the defendant's motion for judgment notwithstanding the verdict, the plaintiff's evidence in this case must be taken as true.

Negligence on the part of a defendant is never presumed merely from proof of the accident, but must be affirmatively proved. 65 C.J.S., Negligence § 204, p. 954; Mischel v. Vogel, N.D., 96 N.W.2d 233; Soltar v. Anderson, 340 Mich. 242, 65 N.W.2d 777; Seeden v. Great Northern R. Co., 242 Minn. 360, 65 N.W.2d 178; Zuber v. Northern Pac. R. Co., 246 Minn. 157, 74 N.W.2d 641.

Unless there is some proof of negligence on the part of the defendant, the defendant cannot be held responsible for injuries suffered by the plaintiff no matter how serious or severe those injuries may be. What evidence of negligence on the part of the defendant does the record disclose in this case?

The plaintiff contends that the defendant was negligent in failing to bring the proper grease gun from Grand Forks. If the failure to bring such grease gun can be viewed as negligence, it clearly was not negligence which was the proximate cause of the injuries suffered by the plaintiff. 'Proximate cause' is merely a limitation which the courts have placed upon a person's responsibility for the consequences of his conduct. Someone has pointed out that the act of disobedience of Eve in the garden has been the cause of all of our troubles. Yet no attempt would be made to impose liability on such a basis. In law, a legal responsibility must be limited to those causes which are so closely connected with the result that the law is justified in imposing liability. Forgetting to bring a grease gun could not be the basis of liability in the case because the mere forgetting of the gun would not have caused the accident.

Plaintiff further contends that the defendant was negligent in failing to warn the plaintiff of the danger involved in greasing the mixer. The evidence does show that the defendant asked the plaintiff: 'Harold, have you got a grease gun?' Does that statement either express or imply a request by the defendant that the plaintiff proceed to grease the mixer? Nowhere in the record is there any evidence to show that the defendant told the plaintiff that the machine should be greased. The plaintiff admitted that, in greasing the mixer, it never entered his mind that his hand would be placed near the gears, 'or I would not have done it.' Nor do we find a scintilla of evidence to indicate that the plaintiff informed the defendant or in any way indicated that he, the plaintiff, intended to proceed to grease the machine.

Plaintiff cites the case of Jacobs v. Bever, 79 N.D. 168, 55 N.W.2d 512, 514, in support of his contention that the plaintiff was a gratuitous employee, and as such is entitled to recover for injuries caused by defendant's want of ordinary care. In the Jacobs case, there was evidence that the defendant had specifically requested the plaintiff's assistance. In that case the plaintiff testified, '* * * he asked me to finish it for him, to see if the burr was tight enough.' While the plaintiff was under the car attempting to make the necessary adjustments, the defendant started his automobile in motion. The court held that, while the plaintiff would not be entitled to recover unless the defendant expressly or impliedly requested the plaintiff's help, the evidence in that case was sufficient to justify the jury in finding that such help had been requested.

Thus in the Jacobs case...