Stoner v. Eggers, No. 9671

CourtSupreme Court of South Dakota
Writing for the CourtHANSON
Citation77 S.D. 395,92 N.W.2d 528
Decision Date20 October 1958
Docket NumberNo. 9671
PartiesJames STONER, Plaintiff and Appellant, v. Ernest EGGERS, Defendant and Respondent.

Page 528

92 N.W.2d 528
77 S.D. 395
James STONER, Plaintiff and Appellant,
v.
Ernest EGGERS, Defendant and Respondent.
No. 9671.
Supreme Court of South Dakota.
Oct. 20, 1958.

[77 S.D. 396] Arend E. Lakeman, Mobridge, for plaintiff-appellant.

A. Coe Frankhauser, Gettysburg, for defendant-respondent.

HANSON, Judge.

This personal injury action brought by an employee against his employer has been tried twice in circuit court. The first trial resulted in a verdict for plaintiff in the

Page 529

amount of $2,130. A new trial was granted. The court directed a verdict for defendant in the second trial. Plaintiff appeals contending the negligence of defendant was a question of fact for the jury and not one of law for the court.

Both parties are residents of Gettysburg. The defendant, Ernest Eggers, owns several rental properties in that city including a store building occupied by the 'East Side [77 S.D. 397] Market'. This store building was originally 60 feet long and 22 feet wide. In 1955 defendant built an addition thereto and employed plaintiff, James Stoner, and Andy Linkys to perform the necessary construction work. While so employed on April 27, 1955 plaintiff was injured when the scaffolding upon which he was working collapsed. This action followed.

In establishing a prima facie case the burden was on plaintiff to show actionable fault on the part of the defendant employer. Stevenson v. Douros, 58 S.D. 268, 235 N.W. 707. Three elements are necessary to constitute actionable negligence, '(1) The existence of a duty or obligation on the part of defendant to protect plaintiff from injury. (2) Failure of defendant to perform or discharge that duty. (3) Injury to plaintiff resulting from such failure of defendant.' Daniels v. Moser, 76 S.D. 47, 71 N.W.2d 739, 741.

Plaintiff was fifty-six years of age. For many years he had been employed as a mechanic in the Potter County Highway Department. From June 1953 until the accident he worked on a building moving crew and as a carpenter. After the accident he was re-employed by the County Highway Department as shop foreman.

The defendant supervised all of the labor performed on the store building. Defendant also furnished all of the materials, equipment, and tools needed in its construction. Included were 3 X 12 inch bridge planks and sets of two-foot, four-foot, and seven-foot sawhorses. The sawhorses were made of 2 X 6 inch material and, according to plaintiff's own testimony, were safe and substantial. By placing the bridge planks on top of a set of sawhorses the workmen were provided with a simple, safe scaffolding. By changing the sawhorses the height of the scaffolding could easily be varied.

On the day of the accident plaintiff and Linkys were siding the south side of the building. Before the noon hour they were using four-foot sawhorses and bridge plank as a scaffold. A higher scaffold was needed to finish the siding after they returned to work in the afternoon. Instead [77 S.D. 398] of using seven-foot sawhorses which were readily available and which would have provided a safe place to work, plaintiff and his fellow servant elected to make their scaffolding higher by...

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15 practice notes
  • Barger for Wares v. Cox, No. 14422
    • United States
    • Supreme Court of South Dakota
    • 28 Agosto 1985
    ...Cuppy v. Bunch, 88 S.D. 22, 214 N.W.2d 786 (S.D.1974); Ecklund v. Barrick, 82 S.D. 280, 144 N.W.2d 605 (1966); Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528 The concepts of duty and the standard of care owed a plaintiff are distinct but interdependent: It is better to reserve "duty" for the ......
  • Smith v. Smith, No. 12276
    • United States
    • Supreme Court of South Dakota
    • 12 Abril 1979
    ...the danger is so obvious that the employee must know by the use of ordinary intelligence the danger that confronts him. Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528 (1958); Ecklund v. Barrick, 82 S.D. 280, 144 N.W.2d 605 The trial court submitted the issues of negligence, proximate cause an......
  • Nelson v. Nelson Cattle Co., Nos. 18114
    • United States
    • South Dakota Supreme Court
    • 30 Marzo 1994
    ...Bunkers v. Mousel, 83 S.D. 45, 154 N.W.2d 208, 210 (1967); Ecklund v. Barrick, 82 S.D. 280, 144 N.W.2d 605, 607 (1966); Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528, 529 (1958); Voet v. Lampert Lumber Co., 70 S.D. 142, 15 N.W.2d 579, 582 (1944). Nelson Cattle Company provided a 25-foot long......
  • Titus v. Titus, No. 8313
    • United States
    • United States State Supreme Court of North Dakota
    • 24 Noviembre 1967
    ...U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; Lund v. Knoff, 85 N.W.2d 676 (N.D.1957); Haga v. Cook, 145 N.W.2d 888 (N.D.1966); Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528; 35 Am.Jur. Master and Servant §§ 264, 313. It is for the jury to determine from the evidence whether the plaintiff had any kno......
  • Request a trial to view additional results
15 cases
  • Barger for Wares v. Cox, No. 14422
    • United States
    • Supreme Court of South Dakota
    • 28 Agosto 1985
    ...Cuppy v. Bunch, 88 S.D. 22, 214 N.W.2d 786 (S.D.1974); Ecklund v. Barrick, 82 S.D. 280, 144 N.W.2d 605 (1966); Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528 The concepts of duty and the standard of care owed a plaintiff are distinct but interdependent: It is better to reserve "duty" for the ......
  • Smith v. Smith, No. 12276
    • United States
    • Supreme Court of South Dakota
    • 12 Abril 1979
    ...the danger is so obvious that the employee must know by the use of ordinary intelligence the danger that confronts him. Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528 (1958); Ecklund v. Barrick, 82 S.D. 280, 144 N.W.2d 605 The trial court submitted the issues of negligence, proximate cause an......
  • Nelson v. Nelson Cattle Co., Nos. 18114
    • United States
    • South Dakota Supreme Court
    • 30 Marzo 1994
    ...Bunkers v. Mousel, 83 S.D. 45, 154 N.W.2d 208, 210 (1967); Ecklund v. Barrick, 82 S.D. 280, 144 N.W.2d 605, 607 (1966); Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528, 529 (1958); Voet v. Lampert Lumber Co., 70 S.D. 142, 15 N.W.2d 579, 582 (1944). Nelson Cattle Company provided a 25-foot long......
  • Titus v. Titus, No. 8313
    • United States
    • United States State Supreme Court of North Dakota
    • 24 Noviembre 1967
    ...U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; Lund v. Knoff, 85 N.W.2d 676 (N.D.1957); Haga v. Cook, 145 N.W.2d 888 (N.D.1966); Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528; 35 Am.Jur. Master and Servant §§ 264, 313. It is for the jury to determine from the evidence whether the plaintiff had any kno......
  • Request a trial to view additional results

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