Vick v. Fanning

Decision Date01 July 1964
Docket NumberNo. 7916,7916
Citation129 N.W.2d 268
PartiesLudvig VICK, Plaintiff and Respondent, v. Ernest FANNING, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. Upon an appeal from an order denying defendant's motion for judgment notwithstanding the verdict, the evidence must be considered in the light most favorable to the plaintiff and plaintiff is entitled to the benefit of all inferences and conclusions which reasonably follow from such evidence.

2. Questions of negligence, proximate cause, assumption of risk and contributory negligence are ordinarily questions of fact for the jury. It is only where the evidence is such that reasonable men can draw but one conclusion therefrom that they become questions of law for the court.

3. It is the duty of an employer to furnish his employees with reasonably safe machinery, tools and appliances.

4. Where there is a safe way and an unsafe way of doing the work, the master must instruct the servant how to do it to avoid injury.

5. Evidence, that an employer instructed an employee in doing his work in an unsafe way and suggested that the employee use it, is sufficient to warrant a finding by the jury that employer was negligent.

6. In order for a negligent defendant to be exonerated by an intervening cause, the claimed intervening cause must be one that severs the connection of cause and effect between the negligent act and the injury.

7. Evidence that an employer negligently demonstrated to an employee an unsafe way of doing his work and suggested that he use it, and that the employee was injured in attempting to follow the employer's suggestion, was sufficient to warrant a finding by the jury that the employee's injuries were proximately caused by the employer's negligence.

8. While a servant must be held to assume ordinary risks which are obvious, and of which he is, or must be aware, there is no assumption of risk by a servant unless he understands and appreciates, or ought to understand and appreciate such risk.

9. Evidence, which will permit an inference that a servant was injured by a risk of which he was totally unaware, and that, because of the servant's education, experience and lack of warning, he should not be charged with awareness or appreciation of the risk, supports a finding by the jury that the servant did not assume the risk.

10. Whether it was an act of ordinary prudence for a farm hand 58 years of age, with an eighth grade education to attempt to use a method of operating a hoist on a farm truck which had been suggested by his employer, and which the employer had demonstrated to him with apparent safety, was a question for the jury.

Nilles, Oehlert & Nilles, Fargo, for appellant.

David Kessler, Grand Forks, for respondent.

BURKE, Judge.

In this action the plaintiff, a farm laborer, sued the defendant, his employer, for damages for injuries he received while operating a farm truck. Issues of the negligence of the defendant, assumption of risk and contributory negligence of the plaintiff were raised by the pleadings and by the evidence adduced in the trial of the case. The trial resulted in a verdict and judgment for the plaintiff. The defendant moved for judgment notwithstanding the verdict. This motion was denied by the trial court and defendant has appealed from the order denying his motion.

The only issues upon this appeal relate to the sufficiency of the evidence. Defendant urges that the evidence is insufficient to support a finding by the jury of negligence on his part, or that his alleged negligence was the proximate cause of plaintiff's injuries. He also asserts that the undisputed evidence, as a matter of law, establishes assumption of risk and contributory negligence on the part of the plaintiff.

In his complaint the plaintiff alleged that defendant was negligent in requiring him to operate a truck which had a defective mechanism for operating the hydraulic hoist which raised and lowered the grain box on the truck and in demonstrating to him a dangerous method of operating the defective valve control of the hoist mechanism.

Plaintiff was an employee of the defendant. One of his duties as such employee was hauling grain. For this purpose he was furnished a truck equipped with a grain box which could be raised and lowered by a hydraulic hoist. The regular controls for the operation of the hoist were installed in the cab of the truck under the instrument panel. They consisted of a power take off and a valve control. The valve control was of the push rod type which operated the valve by means of an attached cable. When the rod was pulled all of the way out, the hoist would elevate the box, when the rod was half was out the box would remain stationary in any position to which it had been raised and when the rod was all of the way in, the mechanism would lower the box. The valve control on this truck, however, would sometimes stick in the 'out' position with the result that the grain box would be raised too high for proper unloading and the grain would spill over the top of the end gate. The only way in which plaintiff, at first, knew how to cope with this contingency was to disconnect the power take-off or stop the engine. Deprived of power, the hoist mechanism would then gently lower the box. When the box was in proper position, plaintiff would start the engine or reengage the power take off and the box would again rise. Plaintiff testified that, by repeating this cycle about four times he could get the box unloaded.

The day before plaintiff was injured defendant undertook to explain and demonstrate to plaintiff how the hoist mechanism could be operated by a lever attached to the frame of the truck under the box. He started the engine with the hoist valve control in the 'out' position and the power take off engaged and the box began to rise. When the box had risen to a sufficient height, defendant, according to plaintiff's testimony, reached under the box and over the frame of the truck, raised the lever to the correct position and the box stopped at the desired elevation. He told plaintiff that he could operate the box in this manner if the control stuck again.

The next day the plaintiff hauled a truck load of corn from the elevator in town to the defendant's farm, and he attempted to unload the truck by the method defendant had demonstrated. He started the motor, engaged the power take off and pulled out the valve control. The valve control stuck in the 'out' position. When the box had risen about 4 1/2 to 5 feet, he disengaged the power take off and the box started slowly to descend. He testified that the box had descended about six inches by the time he got into position to operate the control under the box.

Then with the box descending and the power take off disconnected he attempted to stop the descent of the box by lifting the lever in the manner demonstrated by the defendant. Plaintiff stated that the lever did not move easily and that he jerked it to get it started, with the result that he moved it too far and the box dropped and crushed his right arm between the bottom of the box and the frame of the truck.

Upon an appeal from an order denying defendant's motion for judgment notwithstanding the verdict, the evidence must be considered in the light most favorable to the plaintiff and plaintiff is entitled to the benefit of all inferences and conclusions which reasonably follow from such evidence. Severinson v. Nerby Const. Co. (N.D.) 105 N.W.2d 252; Mischel v. Vogel (N.D.) 96 N.W.2d 233; Schantz v. Northern Pac. R. Co., 42 N.D. 377, 173 N.W. 556. Questions of negligence, proximate cause, contributory negligence and assumption of risk are ordinarily questions of fact for the jury. It is only where the evidence is such that reasonable men can draw but one conclusion therefrom that they become questions of law for the court. Lusty v. Ostlie (N.D.) 71 N.W.2d 753; Geier v. Tjaden (N.D.) 74 N.W.2d 361; Schweitzer v. Anderson (N.D.) 83 N.W.2d 416; Abelstad v. Johnson, 41 N.D. 399, 170 N.W. 619.

From the evidence it appears that the truck furnished by the defendant to the plaintiff, although defective was reasonably safe for use by the plaintiff until the defendant demonstrated an unsafe way for him to use it. Plaintiff knew how to operate the hoist mechanism in a cumbersome, but safe way and it was not until defendant had shown him an easy unsafe way to operate it that the truck became dangerous as to him. It is the duty of the employer to furnish his employees with reasonably safe machinery, tools and appliances. Cameron v. Great Northern R. Co., 8 N.D. 124, 77 N.W. 1016; Warehime v. Huseby, 38 N.D. 344, 165 N.W. 502; Prefontaine v. Great Northern R. Co., 51 N.D. 158, 199 N.W. 480. Also, where there is a safe way and an unsafe way of doing the work, the master must instruct the servant how to do it to avoid injury. Hanel v. Obrigewitsch, 39 N.D. 540, 168 N.W. 45, 3 A.L.R. 1029. The demonstration to the employee of an unsafe way of doing his work and the suggestion that he use it without making certain that the employee understood his instructions, or warning him of additional and greater dangers that might result from a failure to follow the instructions precisely, would, a fortiori, be a breach of the employer's duty and evidence that the employer had so acted is sufficient to support the jury's finding of negligence on his part.

Upon the question of proximate cause defendant urges that the conduct of the plaintiff, himself, after the valve mechanism failed to work, was the intervening, sole and proximate cause of his injury. The argument made in support of this contention rests on the premise that the only negligence, if any, proved against the defendant, was that he furnished the plaintiff a truck with a defective valve control, and that the defective valve control did not cause the injury. Defendant ignores the fact that the jury could also have found that he was negligent in...

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  • Haugenoe v. Workforce Safety and Ins.
    • United States
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    • April 22, 2008
    ...the defendant should have foreseen the probable consequences of his negligent act ... is for a determination of the jury"); Vick v. Fanning, 129 N.W.2d 268 (N.D.1964) (in case in which plaintiff negligently operated defective truck hoist in the manner he was negligently instructed the court......
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    ...fitness for use. An employer has the duty to furnish employees with reasonably safe machinery, tools, and appliances. Vick v. Fanning, N.D., 129 N.W.2d 268; Abelstad v. Johnson, 41 N.D. 399, 170 N.W. An employer, in all cases, shall indemnify his employees for losses caused by the employer'......
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    ...superseded the original act or been itself responsible for the injury. * * * ' 65 C.J.S. Negligence § 111, pp. 688--690. In Vick v. Fanning, 129 N.W.2d 268 (N.D.1964), the plaintiff was furnished by his employer, the defendant, a truck with a defective hydraulic hoist to raise and lower the......
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    ...conclusion therefrom that they become questions of law for the court. Grenz v. Werre, 129 N.W.2d 681, at 685 (N.D.1964); Vick v. Fanning, 129 N.W.2d 268 (N.D.1964). Whether a motorist is confronted with an emergency and, assuming that he was confronted with an emergency, whether he acted ne......
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