Torgerson v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 17 November 1924
• Citation: 51 N.D. 745,200 N.W. 1013
• Court: North Dakota Supreme Court
• Parties: TORGERSON v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

51 N.D. 745

200 N.W. 1013

TORGERSON

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

Nov. 17, 1924.

Syllabus by the Court.

The right of appeal is statutory, and in the absence of statutory permission an appeal will not lie.

An order denying a motion to strike an amended complaint from the files and for judgment on the pleadings is not appealable.

Complaint examined, and held, for reasons set out in the opinion, that it states facts sufficient to constitute a cause of action for negligence.

A servant must be held to assume ordinary risks which are obvious, and of which he is or must be held to be aware.

Whether a danger is obvious, and whether there is any duty on the part of the master to warn, must be determined in the light of the capacity of the servant and the knowledge of or notice to the master of the servant's incapacity.

When a servant is infirm and mentally deficient, it is for the jury to determine as to whether he has the ability and mental capacity to comprehend and appreciate any danger incident to that which he may be doing at the direction of the master.

There is no assumption of risk by the servant, unless he understands and appreciates, or ought to understand and appreciate, such risk.

Where the master knows of the incapacity of the servant to understand and appreciate the risks incident to the work the servant is directed to do, it is the duty of the master to warn against such risks as he is aware of, or ought to be aware of, in the exercise of ordinary care for the servant's safety.

Appeal from District Court, Ramsey County; C. W. Buttz, Judge.

Action by O. Torgerson against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From an order denying its motion to strike the amended complaint, and for judgment on the pleadings, and from an order overruling its demurrer to the amended complaint, defendant appeals. Affirmed, with leave to answer over.Traynor & Traynor, of Devils Lake (John F. Palmer, of Minneapolis, Minn., of counsel), for appellant.

L. R. Nostdal, of Rugby, for respondent.

NUESSLE, J.

This case is now here for the second time. For the opinion on the former appeal, see 194 N W. 741. On that appeal the order of the trial court sustaining the demurrer to the complaint was affirmed, and the case was remanded, “with leave to file and serve an amended complaint within 30 days from date of remittitur.” The remittitur went down on July 31, 1923, and on August 28th an amended complaint was served, which was again demurred to, and prior to decision thereon a further amended complaint was served, the sufficiency of which is now in question. Neither amended complaint was filed until November 20, 1923. The trial court overruled the demurrer to the amended complaint, and denied a motion made by the defendant and appellant to strike the same from the files, and for judgmentof dismissal. The present appeal is from these two orders. The ground of demurrer was that the complaint did not state facts sufficient to constitute a cause of action. The grounds assigned for the motion were that no amended complaint was served and filed within the time prescribed by this court in its mandate, and that, even though timely, the amended complaint was not within the permission to amend granted by this court, or in compliance with its direction as to the nature of the amendment.

The first question that presents itself is as to whether the order denying the motion is appealable.

[2] The right of appeal is statutory and, in the absence of statutory permission, an appeal will not lie. See Wall v. First State Bank of Crosby (N. D) 193 N. W 51;Whitney v. Ritz. 24 N D. 576, 140 N. W 676. Section 7841 provides what orders shall be reviewable. On inspection of this statute, it is at once plain that the order does not come within its terms, unless it can be said to involve the merits of the action. This court has heretofore held that an order denying an application for judgment upon the findings of a jury is not appealable. See Persons v Simons, 1 N. D 243, 46 N W. 969. And an order denying a motion for judgment on the pleadings is not appealable. See Wall v. Bank, supra. Neither is an order denying defendant's motion to dismiss, and granting plaintiff's countermotion for leave to amend the complaint (Strecker v. Railson, 19 N. D. 677, 125 N. W 560), nor an order denying a motion to dismiss for nonprosecution (John Miller Co. v. Minckler, 30 N. D. 360, 152 N. W. 664). And, while there is some difference among the authorities on the question as to whether an order denying a motion to strike a pleading from the files involves the merits, we are of the opinion that it does not. See Stimson v. Stimson, 30 N. D. 78, 152 N. W. 132, and cases cited; Floody v. Railway Co., 104 Minn. 132, 116 N. W. 111;Trust Co. v Menage, 66 Minn. 447, 69 N. W. 224. The order denying the motion to strike and to dismiss is therefore not appealable.

But, in any event, we think that there is no merit to the contentions urged by the appellant against the order denying the motion. The remittitur in the former case did not go down until July 31st. The first amended complaint was served on August 28th. It was therefore served within time True, it was not filed, but from the showing as made it appears that failure to file was an oversight, and it was subsequently filed. We cannot see where the defendant suffered any prejudice by reason of this omission. The trial court saw fit to condone the failure to file, and we think that in so doing it was within its discretion. On November 20th a further amended complaint was served and filed. The trial court permitted this to be done, and here again we think that there was no abuse of discretion. Appellant contends that this court, in its decision on the former appeal, limited the right of amendment, and that the amended complaint of November 20th was not within the permission granted. We think that the construction of our former opinion, as urged by the appellant, is too narrow. It must be construed in the light of the statute on amendments, and, so construed, it warrants the action of the trial court. The statute on amendments (section 7842, C. L. 1913) is very liberal. Wide discretionary powers are given to the trial court, to be exercised in furtherance of justice. Appellant urges that the rule is that, where a cause is sent back for a new trial by an appellate court, wholly inconsistent amendments may not be allowed. Conceding the correctness of this contention, nevertheless, we think that this case does not contravene the rule. The amendment complained of does not change the claim sued upon. The respondent was injured. He contends that the injury occurred by reason of the negligence of the appellant. Such was his position in the original complaint; it is his position in the amended complaint here in question. There is no inconsistency between the original cause of action and that now set out. There may be an inconsistency as to certain matters pleaded then and now, but not such as to warrant us in saying that there was an abuse of discretion on the part of the trial court in allowing the amendment. See Holler v. Amodt, 31 N. D. 12, 153 N. W. 465, and cases cited. Sheimo v. Norqual, 31 N. D. 343, 153 N. W. 470;Webb v. Wegley, 19 N D 606, 125 N. W. 562;Martin v. Furniture Co., 8 N. D. 220, 77 N. W. 1003;Lieuallen v. Mosgrove, 37 Or. 446, 61 P. 1022.

This brings us to a consideration of the order overruling the appellant's demurrer. In the first place, it is plain that we are limited to a consideration of the pleading itself, in determining whether or not the matters therein set out are sufficient to constitute a cause of action. Reference is made in the appellant's brief to certain testimony taken before trial. We cannot consider such testimony at this time.

[3] On the former appeal, we held that the original complaint was subject to demurrer as not setting out facts sufficient to constitute a cause of action. The substance of that complaint is set out in the opinion. We think, however, that the amended complaint is not...