Wollan v. Lord, 10529

CourtUnited States State Supreme Court of Montana
Citation385 P.2d 102,142 Mont. 498
Docket NumberNo. 10529,10529
PartiesRuben WOLLAN, Plaintiff and Respondent, v. Bill LORD, Defendant and Appellant.
Decision Date17 September 1963

Loren J. O'Toole, Plentywood, John C. Sheehy, Billings (argued), for appellant.

Vernon Hoven, Missoula (argued), for respondent.


This is an appeal from a judgment rendered in the district court of the fifteenth judicial district in and for the County of Sheridan. The jury found for the plaintiff (respondent here) in the sum of $10,000, and the defendant brings this appeal. On appeal, the appellant contends that the plaintiff was guilty of contributory negligence as a matter of law; that the evidence did not show any act or omission of defendant as a proximate cause of plaintiff's injuries; and that the jury was not properly instructed on the question of assumption of risk.

The facts are as follows: About twenty or twenty-five days prior to the accident, the defendant hired plaintiff to work on his grain farm near Plentywood. It appeared that during the first weeks of his employment he did general work about the farm. Then in the latter part of July defendant began to prepare his combine for the coming harvest season. It took him about a week to do this, working on and off. During this time plaintiff worked with him on the combine.

On or about August 19, 1960, plaintiff and his employer were riding on the combine when plaintiff drove the machine over a ditch. In the process, the machine picked up a rock which became lodged in the auger on the platform. The plaintiff before climbing down from the seat pressed an electromagnetic switch, the effect of which was to stop the power running to the forward part of the combine including the reel. The plaintiff did not however, disengage the hand clutch which would have disconnected the cutting reel from any possible power connection with the motor. Plaintiff brought a metal bar about 30 inches in length and he and the defendant went around to the reel of the combine. The plaintiff first attempted to use the metal bar to pry the rock loose, however, he was unsuccessful. Then the defendant attempted to remove the rock with the bar and was likewise unsuccessful. Defendant testified that as he walked around to the side of the combine he saw the plaintiff about to place his hands inside the reel in order to remove the rock. Defendant asserted that he told him to get his hands out of there, but plaintiff testified he did not recall such warning. Plaintiff admits he then reached through the reel in order to remove the stone. As plaintiff dislodged the rock, the threshing and cutting portions of the combine immediately came into operation. The plaintiff was struck on the back or shoulder by one of the slats of the reel, which threw him forward into the cutter bar. His left hand was thrust forward and was lacerated at the cutter bar, but he avoided further injury by throwing himself down.

At the trial there was testimony that prior to the accident the electro-magnetic switch on the combine was found to be defective, and defendant attempted to purchase a new one. Being unable to obtain one, defendant then crossed the wires and by-passed the switch in order to operate the machine. Some seven or eight days prior to the accident defendant uncrossed the wires and found the switch to be working properly. He reported this to the plaintiff, who then used the combine in this condition for seven or eight days. Plaintiff testified that during this period he used the switch as much as fifty times a day, and that it operated properly.

The appellant in this case sets out seven different specifications of error, however, these can be resolved into two main questions for our consideration. The first question concerns the evidence supporting the verdict. Appellant alleges that the respondent was guilty of contributory negligence as a matter of law and that the evidence does not reveal any act or omission of the appellant as a proximate cause of the respondent's injuries.

This court has repeatedly held that the question of contributory negligence is a question of law only when the evidence is of such a character that it will support only one legitimate inference, otherwise it is a question of fact for the jury. Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025; Monforton v. Northern Pacific Ry. Co., 138 Mont. 191, 355 P.2d 501; Dahlin v. Rice Truck Lines, 137 Mont. 430, 352 P.2d 801. That the evidence was not of such a character as to support only one inference is here apparent. The findings of a jury will not be overruled unless there is not substantial evidence to support it. Green v. Wolff, 140 Mont. 413, 372 P.2d 427; Wyant v. Dunn, 140 Mont. 181, 368 P.2d 917; Holland Furnace Co. v. Rounds, 139 Mont. 75, 360 P.2d 412. This is especially true when the trial court, as in the instant case has passed on the sufficiency of the evidence on a motion for a new trial and has upheld its sufficiency. Jessen v. O'Daniel, 136 Mont. 513, 349 P.2d 107; Batchoff v. Craney, 119 Mont. 157, 172 P.2d 308. A reading of the transcript reveals there is ample evidence to support the jury's findings and thus there is no merit in this contention.

The appellant, in a similar vein, argues that there is no evidence to support the jury's finding that the proximate cause of appellant's injuries was the negligence of the respondent. We have given careful consideration to all the evidence in this case, and in our view, there is substantial evidence to support the jury's finding in this regard also.

The second question concerns the defense of assumption of risk. Appellant urges that the respondent assumed the risk of the defective electro-magnetic switch as a matter of law; and that the motion for a directed verdict should have been given or at very best that the jury should have been instructed on assumption of risk.

The defense of assumption of risk is similar to the defense of contributory negligence in many respects. One of which is when it will be considered a question of law. Like the defense of contributory negligence, it is a question of law only when the evidence will support but one legitimate inference. Cotton v. Osterberg, 88 Mont. 383, 292 P. 908; Boyd v. Great Northern R. Co., 84 Mont. 84, 274 P. 293; Monson v. La France Copper Co., 43 Mont. 65, 114 P. 779. The evidence pertaining to this defense has been reviewed carefully, and this court cannot rule that the only inference it will support is that the respondent assumed the risk. This is a question for the jury.

The second part of appellant's contention, that the jury was not properly...

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21 cases
  • Brown v. North Am. Mfg. Co., 13706
    • United States
    • United States State Supreme Court of Montana
    • March 2, 1978
    ...on assumption of the risk was not prejudicial error, as defendant was not thereby deprived of the potential defense. Wollan v. Lord (1963), 142 Mont. 498, 385 P.2d 102. In fact, defendant was able under the given instruction to introduce evidence and argue the defense under a burden signifi......
  • Streich v. Hilton-Davis, a Div. of Sterling Drug, Inc., HILTON-DAVI
    • United States
    • United States State Supreme Court of Montana
    • December 13, 1984
    ...were refused by the court and with the effect that its theory of defense was not presented to the jury, citing Wollan v. Lord (1963), 142 Mont. 498, 504, 385 P.2d 102, 106. Hilton-Davis' brief then "Specifically, the defendant's instructions on foreseeability of risk (2) defining unreasonab......
  • Butler Mfg. Co. v. J & L Implement Co., 12860
    • United States
    • United States State Supreme Court of Montana
    • September 5, 1975
    ...less confusing to the jury and sets forth the disavowal rule as stated in McLaren Gold Mines Co. This Court held in Wollan v. Lord, 142 Mont. 498, 504, 385 P.2d 102, 106, that: 'A trial judge will not be held in error for refusing to give instructions where the subject has been adequately c......
  • Lamb v. Page, 11581
    • United States
    • United States State Supreme Court of Montana
    • June 5, 1969
    ...by those actually given. See Holmes v. Potts,132 Mont. 477, 319 P.2d 232; Franck v. Hudson, 140 Mont. 480, 373 P.2d 951; Wollan v. Lord, 142 Mont. 498, 385 P.2d 102; State Highway Comm. v. Manry, 143 Mont. 382, 390 P.2d In specifications of error #'s 8 and 9 the defendants urge that the cou......
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