Umsted v. The Colgate Farmers Elevator Company, a Corporation

• Decision Date: 28 June 1909
• Citation: 122 N.W. 390,18 N.D. 309
• Court: North Dakota Supreme Court

122 N.W. 390

18 N.D. 309

RAY UMSTED, A MINOR, BY ALBERT UMSTED, GUARDIAN AD LITEM v. THE COLGATE FARMERS ELEVATOR COMPANY, A CORPORATION

Supreme Court of North Dakota

June 28, 1909

Appeal from District Court, Cass county; Chas. A. Pollock, J.

Action by Ray Umsted, by Albert Umsted, his guardian ad litem against the Colgate Farmers' Elevator Company. Judgment for plaintiff, and defendant appeals.

Reversed and new trial ordered.

Judgment reversed, and new trial ordered.

Ball Watson, Young & Hardy, for appellant.

Where both parties are guilty of negligence no recovery can be had. West v. N. P. Ry. Co., 13 N.D. 221; 100 N.W. 254; Labat, Master and Servant, Sec. 339.

Where dangers are open and obvious or may be discovered by the exercise of prudence and care, attention need not be called to them. Carlson v. Sioux Falls Co., 8 S.D. 47; 65 N.W. 419; Anderson v. Winston, 31 F. 528; Water Supply Co. v. White, 24 N.E. 747; The Saratoga, 94 F. 221; Carey v. B. & M. R. R., 33 N.E. 512.

W. J. Courtney, for respondent.

Installing a defective appliance, and knowingly ordering an inexperienced youth into a dangerous place to operate it, with no warning of its dangerous character, render the master liable in damages. 7 A. & E. L. Ency., (2nd Ed.) 423, note 1, cases cited; 5 Thompson on Negligence, Sec. 5378; Meehan v. Great Northern Ry. Co., 13 N D, 432, cases cited; Brazil Black Co., v. Gaffney, 4 L. R. A. (O. S.) 850; Sherman v. Menominee River Lumber Co., 1 L. R. A. 173 Choctaw O. & W. Ry. Co., v. Wilker, 84 P. 1086; Tuckett v. American Steam Laundry, 4 L. R. A. (N. S.) 990; 84 P. 500; Granrus v. Croxton Mining Co., 113 N.W. 693; Choctaw, Oklahoma R. Ry. Co., v. Jones, 4 L. R. A., (N. S.) 837. 92 S.W. 244; Barrett v. Reardon, 104 N.W. 309; Illinois Southern Railway Co. v. Marshall, 66 L R A, 297; Newbury v. Getchell, 69 N.W. 743; Lohman v. Swift & Co., et al, 117 N.W. 418; James v. Rapids Lumber Company, 44 L. R. A. 33.

Dallemand v. Saalfeldt, 48 L. R. A. 753, notes; 175 Ill. 310; Dizonno v. G. T. No. Ry. Co., 114 N.W. 736.

By a motion for a directed verdict, the mover waives his right to verdict of a jury, unless a specific request to go to the jury is made after his motion is denied. First Methodist Church v. Fadden, 8 N.D. 162; Erickson et al. v. Nat. Bank, 9 N.D. 81; Yankton Ins. Co. v. Fremont E. & M. V. Ry. Co., 64 N.W. 514; Indiana Railroad Co. v. Quick, 109. Ind. 295. When an employe is ordered to use an instrument, which the master knows is dangerous, contributory negligence and assumption of risk cannot avail. Johnson v. Atwood, 112 N.W. 262; Duchene v. Lefebvre, 112 N.W. 865; Cody v. Longyear, 114 N.W. 735; Siegel Cooper Co. v. Tracka, 2 L. R. A., (N. S.) 647; 218 Ill. 559; 75 N.E. 1053; Goodrich v. N.Y. Central Ry. Co., 26 N.Y., S. 767; Hawkins v. Johnson, 105 Ind. 29; Ladd v. Foster, 31 F. 827; Lawrence v. Green, 70 Cal. 417; 19 F. 794; 14 F. 562; 20 F. 105; Semeona v. Lindsay, 65 A. T. L. 778; Sherwood v. N.Y. Central Ry. Co., 105 N.Y. 547; Pearce on Railroads, 328, 69 N.Y. 158; 137 N.Y. 1.

OPINION

FISK, J.

Plaintiff, as guardian ad litem for one Ray Umsted, recovered judgment against defendant in the court below for the sum of $ 5,000 as damages for the alleged negligence of the defendant, resulting in serious personal injury to such minor. At the conclusion of the plaintiff's testimony, defendant moved for a directed verdict, which motion was denied, and an exception taken. At the close of all the testimony, defendant renewed its motion for a directed verdict, which was also denied, and an exception saved. Thereafter, on plaintiff's motion, the trial court, over defendant's objection, instructed the jury that the sole question for them to determine was the extent of the damage suffered by plaintiff on account of his injuries, to which ruling defendant excepted. On all other issues the trial court subsequently made findings of fact favorable to plaintiff. Thereafter defendant moved in the alternative for judgment notwithstanding the verdict, or for a new trial. The latter motion was denied and an exception taken.

The facts necessary to a correct understanding of the questions presented by the appeal are not seriously in dispute, and are as follows: Defendant is a corporation owning and operating a grain elevator at Colgate. The power necessary to operate the machinery in this elevator is generated by a gasoline engine located some distance from the elevator and connected by a shaft which, when in motion, makes about 200 revolutions per minute. One Borneman was in charge of said elevator as manager, and the said Ray Umsted, the person injured, who was between 19 and 20 years of age at the time of the injury, was employed to assist Borneman in operating such elevator. It frequently became necessary to move cars into position for loading grain and this was done by Ray with the use of a crowbar. Some time prior to the accident Borneman and this young man on several occasions discussed the advisability and feasibility of providing a contrivance whereby power from the engine which operated the elevator could be used in moving cars back and forth, and the following scheme was finally adopted: A wooden capstan or drum was securely bolted onto the shafting between the engine house and the elevator building, and a rope was to be fastened to the car and run through a pulley to be fastened to the rail on the railroad track opposite the capstan, and around the latter, and was to be operated by pulling the rope sufficiently tight to enable the drum or capstan, on account of the friction, to wind the rope as the shaft revolved. The construction of such contrivance and the manner of its operation may best be described by quoting from the testimony.

Plaintiff testified: "While I was there several improvements were made. Among these was a car puller. H. B. Borneman installed it. Tim Russ did the work. I saw him do it and was there when he did it. * * * This car puller was a cylinder made out of about 4x6 about 3 feet long and round in the center, and put on the main shaft with eight bolts, and there was an iron pulley fastened to the rail about 30 feet from the shaft and a rope went from the drum through the pulley and up to the car, and I was to pull. * * * I was instructed to put the rope around the drum and pull the slack up. Borneman instructed me. * * * He told me to put that rope around the drum, and explained how to do it, and told me to stand back of the drum and pull the slack to make the rope bind tight enough on the drum to pull the car. He told me to pull that slack and I did so, and the drum slid and burned the rope and he threw the engine out of gear and told me to take another hitch around the drum, and Mr. Foster also told me, and they both came out and showed me how to do it, and I did so, and he goes back to the elevator and threw the engine in gear again, and it started about 200 revolutions a minute and the rope broke instantly, and I was caught by the spring of the rope coming back. It caught me and threw me around this drum." Borneman testified: "Ray Umsted went to work in the elevator some time in August. I had quite a few talks with him about a car puller. These talks came up at intervals, and we talked how we was to make one, and decided to get capstan or drum. We had a cut or picture of a puller; not like this Exhibit B. The puller was oval like, and the rope would stay inside, and there would be no chance for the rope to catch. * * * I did not see Exhibit B put on. I was away. When I came back, I got sight of it, and immediately told Ray to take it off at once. I felt out of patience that the thing was on there. Ray said: 'Can't we try it before we take it off?' I said that 'We hadn't better try it; but to satisfy you we will.'" This witness then states that Ray was to handle the rope by standing back of the capstan and keeping such rope taut. Among other things he says: "If it was going too fast, he was to let go of it a little, and work it off and on so as to pull the car." This witness testified that he considered the contrivance impracticable, and he did not want to use it, but Ray was anxious to try the same, and he gave him a chance to satisfy his curiosity. He describes the manner of the injury in substance as follows: "The rope was about 300 feet in length. The portion not in use was right behind the machine alongside of Ray back of the drum. The rope was wound once around the drum. He was back of the drum holding the rope. I fastened the rope to the car. Umsted went to the drum. I went to the engine. The pile of rope was in a coil just at his left. I started the engine which started the shaft revolving. Its speed is about 120 revolutions per minute. It starts almost full speed. I let it run probably half a minute, then put it back on the loose pulley, stopping the shaft from revolving, and went out. I saw the contrivance was not working. I went to where Ray was. The surplus rope was coiled upon the ground just at his left side about a foot high. I said to him to keep away from the rope on the ground, because it looked dangerous. When I last saw him, he was standing there holding the rope as I described. I went to the engine room and started the engine again. I saw the rope break just at the same time I slipped the belt back onto the loose pulley. It was all done in an instant. The rope raised up about a foot from the ground; that is, to its natural height. I examined the rope and found that it had not gone through the block, and that it broke right close up to the car. It was a three-quarter inch rope. I helped take Ray out and think there were two strands around his ankle; can't say how much rope was wrapped around the pulley when we took Ray out." Ray was caught in some...