Titus v. Titus

• Decision Date: 24 November 1967
• Docket Number: No. 8313,8313
• Citation: 154 N.W.2d 391
• Parties: Melvin E. TITUS, Plaintiff and Appellant, v. Roy A. TITUS, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 391

154 N.W.2d 391

Melvin E. TITUS, Plaintiff and Appellant, v. Roy A. TITUS, Defendant and Respondent.

No. 8313.

Supreme Court of North Dakota.

Nov. 24, 1967.

Syllabus by the Court

1. A party moving for summary judgment is entitled to judgment if it appears that there is no genuine issue of material fact to be tried by the court.

2. One who moves for a summary judgment has the burden of demonstrating clearly that there is no genuine issue of fact.

3. Questions of negligence, proximate cause, contributory negligence and assumption of risk are ordinarily questions of fact for the jury.

4. Under N.D.R.Civ.P. Rule 56(c) a motion for summary judgment will be granted only if after taking the view of the evidence most favorable to the party against whom summary judgment is sought it appears that there is no genuine issue as to any material fact and that the party seeking the judgment is entitled to it as a matter of law.

5. The employer must furnish his employees with reasonably safe machinery, tools, and appliances.

6. The employer has a duty to warn the employee of those dangers incident to the work of which he has knowledge and of which the employee has no knowledge. He need not, however, warn of dangers which are known to the employee or which are obvious to and fully appreciated by the employee.

7. The employer is bound to observe all the care which prudence and the exigency of the situation require, with respect to furnishing instrumentalities adequately safe for the use of the employee, and, when such instrumentalities are furnished, the employer is required, further, to exercise due care in keeping the same safe and serviceable; and, with this end in view, the employer is bound to make seasonable inspection of the condition of the instrumentalities furnished for the use of the employee.

8. When there is a safe way and an unsafe way of doing the work, the employer must instruct the employee how to do it to avoid injury.

9. Here, the minds of reasonable men might well differ as to the proximate cause of the plaintiff's injury. The probable negligence on the part of the defendant, and this question, as well as the probable negligence on the part of the plaintiff, should go to a jury.

10. In order to invoke the defense of assumption of risk it must be shown not only that the employee had knowledge of the risk, but also that he appreciated the danger arising therefrom.

11. The evidence is such that reasonable men might draw different conclusions as to the assumption of risk and contributory negligence of the plaintiff, and such question should be left to the jury or trier of facts.

Moody M. Farhart (Paul E. Rohde, Associate), Minot, for appellant.

Pringle, Herigstad, Meschke, Loder, Mahoney & Purdy, Minot, for respondent.

KNUDSON, Judge.

This appeal is from a summary judgment entered in favor of the defendant, Roy Titus, dismissing the plaintiff's action.

The plaintiff is a fifty-five-year-old farmer, who has owned and worked with cattle all his life. He was injured while assisting the defendant, at the request of the defendant, in vaccinating a herd of cattle on the defendant's farm. A cattle chute, furnished to the defendant by his brother-in-law, Harold Peterson, was used to restrain the cattle while the veterinarian performed the vaccination. The cattle chute was homemade by Mr. Peterson. At the front end of the cattle chute was a gate, attached to the cattle chute by hinges on one side, and kept closed by a spring latch on the other side. Within the gate, and a part of it, was a clamp, or squeeze, which was lowered, like a guillotine, by a lever, over the animal's neck, holding the animal's head in a vise-like grip. The lever was locked by a ratchet bar. After the animal had been vaccinated the clamp was raised by releasing the lever, and the gate was then opened to permit the animal to leave.

As neither the plaintiff nor the defendant had used this cattle chute before, nor one of a similar type, both were unfamiliar with its method of operation. But both parties on other occasions had used other types of cattle chutes. The cattle chute was brought to the defendant's farm and set up on the day before, or in the morning of the day, the accident happened, and was in place and ready for use when the plaintiff arrived about 2:00 p.m. The defendant, another brother, and the brother-in-law had already taken up positions in the barn to drive the cattle into the cattle chute. The veterinarian had taken a position at the gate to administer the vaccine. The plaintiff took a position at the gate as that was the only place left unattended. He was given no instructions on the operation of the cattle chute. His job was to operate the clamp restraining the cattle during the vaccination and to release the clamp and open the gate to let out the cattle when the vaccination was completed.

Shortly after the work had commenced one of the animals, either the second or third, broke out of the cattle chute, springing open the latch on the gate. After a discussion with the veterinarian a piece of wood was placed as a wedge in the latch. The defendant was not informed about the defective latch. The work continued for some time without trouble, until the plaintiff, after he had started to release a cow, was told by the veterinarian to hold the cow in the chute until a small sucking calf, which had slipped up behind the cow, could be turned back so that it would not escape when the cow was released. In compliance with the order of the veterinarian the plaintiff, who had released the lock of the lever of the clamp, held down the lever by his own weight to hold the cow, but the cow made a terrific lunge, bursting open the gate and throwing the clamp and clamp lever upward, tossing the plaintiff to the ground and injuring his shoulder. A few minutes later the plaintiff, seeing the calf about to get out through the chute, the gate apparently having swung shut, pulled down the lever to close the clamp on the calf to stop it from getting out, But, because the calf's neck was too small to stop the clamp, the lever went all the way down to the frame, smashing the plaintiff's finger between the lever and the frame.

The plaintiff alleges that the defendant was negligent in that he failed to provide proper and safe working conditions. The defendant's answer denies any negligence on his part, and alleges that if the plaintiff was injured it was due to persons, things, or causes over which he had no control, or by the plaintiff's contributory negligence, and that the plaintiff assumed the risks connected with the type of work.

The defendant moved for summary judgment under Rules 56(b) and (c) of the North Dakota Rules of Civil Procedure on the pleadings, the deposition of the plaintiff and the affidavits of the defendant and Harold Peterson. The plaintiff resisted the motion and submitted his affidavit. After a hearing was held and briefs were submitted, the trial court granted the defendant's motion for summary judgment against the plaintiff. The plaintiff appeals from the judgment.

The plaintiff contends that the court erred in granting summary judgment dismissing the complaint, there being an issue of fact triable to a jury; that the court erred in granting a dismissal based on the self-serving affidavits of the defendant and of the owner of the machine involved, thus depriving him of an opportunity to cross-examine the affiants and depriving the jury of an opportunity to observe their demeanor; that the court erred in granting a dismissal based upon the observability of a defect to plaintiff, while apparently overlooking both the observability of the same defect to the defendant and the statutory duty of defendant as an employer to provide safe working conditions for his employees. The sole issue is whether the defendant was entitled to a summary judgment as a matter of law.

In the instant case the court granted summary judgment on the grounds that there was no evidence of any negligence on the part of the defendant, and that the plaintiff assumed the risk and danger known to him or discoverable by the exercise of ordinary care on his part, and was contributorily negligent as a matter of law. The court concluded that there was no genuine issue as to any material fact.

The plaintiff contends, however, that there was evidence of negligence on the part of the defendant by his failure to supply a safe machine and safe working conditions, to inspect the machine for defects and to warn the plaintiff of any defects discovered or discoverable. The plaintiff further contends that on the questions of assumption of risk and contributory negligence there was no evidence adduced of any knowledge or appreciation on the part of the plaintiff of any danger arising from the operation of the cattle chute, that there must be a combination of knowledge and appreciation of the danger is order to give rise to the defense of assumption of risk.

A party moving for summary judgment is entitled to judgment if it appears that there is no genuine issue of any material fact to be tried by the court. Lang v. General Motors Corporation, 136 N.W.2d 805 (N.D.1965); Fire Ass'n of Philadelphia v. Vantine Paint & Glass Company of Bismarck, 133 N.W.2d 426 (N.D.1965); Mondy v. Gjesdal, 123 N.W.2d 33 (N.D.1963); Temme v. Traxel, 102 N.W.2d 1 (N.D.1960).

The rule provides that:

Judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. * * *

N.D.R.Civ.P. 56(c).

This court in Feather v. Krause, 91 N.W.2d 1 (N.D.1958), said:

Under this rule (N.D.R.Civ.P. 56(c)) the motion will be granted only if after taking the view of the evidence most favorable to the party against whom summary judgment is sought it appears that there is no genuine issue as to any...