Smith v. Community Co-op. Ass'n of Murdo, CO-OPERATIVE

CourtSupreme Court of South Dakota
Writing for the CourtWINANS
Citation87 S.D. 440,209 N.W.2d 891
PartiesSam SMITH, Plaintiff and Respondent, v. COMMUNITYASSOCIATION OF MURDO, South Dakota, and Ted Nies, Jr., Individually and as agent of Community Co-operative Association of Murdo, South Dakota, Defendants and Appellants.
Decision Date14 August 1973
Docket NumberCO-OPERATIVE,No. 11107

Page 891

209 N.W.2d 891
87 S.D. 440
Sam SMITH, Plaintiff and Respondent,
v.
COMMUNITY CO-OPERATIVE ASSOCIATION OF MURDO, South Dakota,
and Ted Nies, Jr., Individually and as agent of
Community Co-operative Association of
Murdo, South Dakota,
Defendants and Appellants.
No. 11107.
Supreme Court of South Dakota.
Aug. 14, 1973.

[87 S.D. 441] Costello, Porter, Hill, Banks & Nelson, Ronald W. Banks, Rapid City, for defendants and appellants.

Brost & Brost, Frank D. Brost, Presho, and Dana, Golden, Moore & Rasmussen,

Page 892

Richard W. Sabers, Sioux Falls, for plaintiff and respondent.

WINANS, Justice.

The plaintiff, Sam Smith, brought this action to recover damages for personal injuries that he sustained while assisting in extracting the wheel from a tractor tire at the defendant co-operative's place of business in Draper. The individual defendant, Ted Nies, was a general manager of the defendant co-op at the time of the incident. In his complaint, the plaintiff alleged that the proximate cause of his injuries was the defendants' negligence in, among other things, failing to warn him of the danger and failing to take reasonable precautionary measures. The jury returned a verdict of $21,000 in favor of the plaintiff and the defendants have appealed.

[87 S.D. 442] For the purposes of this appeal, the significant facts are as follows: On the date the accident occurred, Ted Nies and one of his employees were attempting to remove a large tractor tire from its inner assembly. The inner assembly consisted of the rim, wheel and wheel weight and it weighed between 700 and 1000 pounds. The process of removing the tire required that the inner assembly be dropped out of the tire by prying the beads of the tire over the rim, thus releasing the inner assembly to drop free of the tire to the ground. To accomplish this, it was necessary that the tire and inner assembly be placed in an upright position and balanced until the tire could be struck with a hammer to pry it off and over the outer lip of the rim. After encountering difficulty in handling the assembly, Nies requested assistance from plaintiff and two other patrons of the service station. All three, as requested, aided in holding the tire upright while Nies pounded on the tire with a hammer. There was evidence that Nies beat on the tire about three times before the rim, wheel and wheel weight fell immediately to the ground upon plaintiff's left hand, severing two of his fingers.

At the trial, the plaintiff testified that due to the position in which he was standing, he did not observe the wheel and wheel weight or realize that they were attached to the rim. Plaintiff admitted, however, that although he was not aware of the total amount of weight involved, he knew at the time that the rim alone was heavy enough to injure him if it fell on his hand.

In this appeal, it is the defendants' primary contention that the trial court erred in denying their motions for summary judgment and a directed verdict for the following reasons: (1) that the evidence established as a matter of law that plaintiff assumed the risk of his injury; (2) that the evidence established as a matter of law that the conduct of the plaintiff constituted negligence more than slight; and (3) that the evidence established as a matter of law that the injury to the plaintiff was due solely to the negligence or misconduct of a fellow servant. These three grounds will be considered in the order presented.*

[87 S.D. 443] Before a party may be charged with assumption of the risk, it must be established that he had knowledge of the danger involved (actual or constructive); that he appreciated the risk therefrom; and that he voluntarily accepted said risk. Bartlett v. Gregg, 1958, 77 S.D. 406, 92 N.W.2d 654; Schmeling v. Jorgensen, 1957, 77 S.D. 8, 84 N.W.2d 558; 57 Am.Jur.2d., Negligence, § 281. Ordinarily, whether a plaintiff has assumed a risk is a question for the jury. It is only where the essential elements are conclusively established that the plaintiff may be charged with assumption of the risk as a matter of law.

In the present case, the trial court was...

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15 practice notes
  • Nelson v. Nelson Cattle Co., Nos. 18114
    • United States
    • South Dakota Supreme Court
    • March 30, 1994
    ...did not explain how to use the tool correctly 3 and did not provide adequate supervision. Smith v. Community Co-operative Ass'n of Murdo, 87 S.D. 440, 209 N.W.2d 891, 893 (1973). The jury could reasonably conclude that Nelson Cattle Company did not provide a safe place to work or adequate s......
  • Goepfert v. Filler, No. 19777
    • United States
    • Supreme Court of South Dakota
    • May 14, 1997
    ...established that the plaintiff may be charged with assumption of the risk as a matter of law." Smith v. Community Co-op. Ass'n of Murdo, 87 S.D. 440, 443, 209 N.W.2d 891, 892 (1973). See Westover, 488 N.W.2d at 896 ("In the absence of a factual dispute, where the evidence warrants, the circ......
  • Parker v. Casa Del Rey-Rapid City, Inc., No. 21810.
    • United States
    • Supreme Court of South Dakota
    • February 27, 2002
    ...if all of the elements are "conclusively established." See Stenholtz, 264 N.W.2d at 518; Smith v. Community Co-op. Assoc. of Murdo, 87 S.D. 440, 442, 209 N.W.2d 891, 892 (1973). 641 N.W.2d 118 We affirm the submission of this issue for a jury [¶ 13.] 3. Whether the trial court correctly ins......
  • Schan v. Howard Sober, Inc., No. 8954
    • United States
    • North Dakota Supreme Court
    • March 28, 1974
    ...of Murdo, South Dakota, and Ted Nies, Jr., individually and as agent of Community Co-Operative Association of Murdo, South Dakota, 209 N.W.2d 891 (S.D.1973), which involved a factual situation which is strikingly similar to that in the instant In Smith, supra, the plaintiff, who was a custo......
  • Request a trial to view additional results
15 cases
  • Nelson v. Nelson Cattle Co., Nos. 18114
    • United States
    • South Dakota Supreme Court
    • March 30, 1994
    ...did not explain how to use the tool correctly 3 and did not provide adequate supervision. Smith v. Community Co-operative Ass'n of Murdo, 87 S.D. 440, 209 N.W.2d 891, 893 (1973). The jury could reasonably conclude that Nelson Cattle Company did not provide a safe place to work or adequate s......
  • Goepfert v. Filler, No. 19777
    • United States
    • Supreme Court of South Dakota
    • May 14, 1997
    ...established that the plaintiff may be charged with assumption of the risk as a matter of law." Smith v. Community Co-op. Ass'n of Murdo, 87 S.D. 440, 443, 209 N.W.2d 891, 892 (1973). See Westover, 488 N.W.2d at 896 ("In the absence of a factual dispute, where the evidence warrants, the circ......
  • Parker v. Casa Del Rey-Rapid City, Inc., No. 21810.
    • United States
    • Supreme Court of South Dakota
    • February 27, 2002
    ...if all of the elements are "conclusively established." See Stenholtz, 264 N.W.2d at 518; Smith v. Community Co-op. Assoc. of Murdo, 87 S.D. 440, 442, 209 N.W.2d 891, 892 (1973). 641 N.W.2d 118 We affirm the submission of this issue for a jury [¶ 13.] 3. Whether the trial court correctly ins......
  • Schan v. Howard Sober, Inc., No. 8954
    • United States
    • North Dakota Supreme Court
    • March 28, 1974
    ...of Murdo, South Dakota, and Ted Nies, Jr., individually and as agent of Community Co-Operative Association of Murdo, South Dakota, 209 N.W.2d 891 (S.D.1973), which involved a factual situation which is strikingly similar to that in the instant In Smith, supra, the plaintiff, who was a custo......
  • Request a trial to view additional results

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