Wyldes v. Patterson

• Decision Date: 02 July 1915
• Citation: 153 N.W. 630,31 N.D. 282
• Parties: WYLDES v. PATTERSON.
• Court: North Dakota Supreme Court

31 N.D. 282

153 N.W. 630

WYLDES

v.PATTERSON.

Supreme Court of North Dakota.

April 29, 1915.

On Petition for Rehearing, July 2, 1915.

Syllabus by the Court.

Where a fact may be positively and accurately proved by a simple mathematical demonstration and computation, it is not error to exclude photographs and other testimony which seeks to controvert the established laws of mathematics.

The distance back upon the roof of a building where a man standing on such roof comes within the range of vision of a person standing in the street can be mathematically demonstrated to a certainty, and the court may take judicial notice of what the results of the mathematical computation necessary to establish the fact would be.

The doctrine of the assumption of the risk only applies to risks which the plaintiff knows and appreciates, or which in the exercise of due care he should have known and appreciated.

Where an accident occurs through the premature lowering of an elevator upon which the plaintiff is placing a wheelbarrow, and the evidence shows that the engineer who operated the engine which raised and lowered the elevator relied upon a system of signals which the foreman in control of the plaintiff had a short time prior to the accident ordered discontinued, and the plaintiff himself was led to believe that such system was not in operation, and that the engineer would not rely thereon, but would use every precaution to give him ample time to draw back from said elevator, it cannot be said as a matter of law that such employé assumed the risk of the confusion of methods of operation, which arose from the failure of the master to arrange for a common system and to make it known to all of the parties concerned.

It is not error to refuse to allow photographs to be introduced in evidence, where the premises involved are within three blocks of the courthouse, and an inspection is both practicable and possible.

The admission or rejection of photographs is largely within the discretion of the trial court, and whether they are sufficiently verified or whether they may be useful to the jury are preliminary matters which are addressed to him.

Photographs are received as merely an aid to the jury in applying the evidence, and, if they tend to confuse rather than aid the jury, they should be excluded.

To be admissible in evidence, photographs should simply show conditions existing at the time in question, and photographs which show more than this, and with men in various assumed situations in order to illustrate the claims and contentions of the parties, should not be admitted.

The doctrine of res ipsa loquitur will apply where the accident occurs through the breaking of a steel cable 300 feet in length, and where such cable is not produced upon the trial by the defendant, nor is any proof introduced of its condition or inspection prior to the accident, and the action was begun within three months of the time when such accident occurred, and the only excuse for its nonproduction is that counsel does not know where it is.

If the negligence of the master or of one for whose conduct the master is answerable mingles with that of one who stands in the relation of a fellow servant to the servant receiving the injury, or if the negligence of the master or his representative is the proximate or efficient cause of the injury, the master will be liable, and will not be allowed to escape liability on the ground that the injury also proceeded from the negligence of one for whose conduct he was not answerable.

The mere withholding or failure to produce evidence which, under the circumstances, would be expected to be produced, and which is available, gives rise to a presumption against the party withholding it. The courts recognize and act upon the natural inference that the evidence is held back under such circumstances because it would be unfavorable.

Where the defendant does not ask the court to eliminate questions which are raised in the pleadings from the jury's consideration, he cannot complain that an issue raised by such pleadings is improperly submitted to the jury.

The burden of establishing the defenses of contributory negligence and the assumption of the risk is upon the defendant.

The charge of a court to a jury is entitled to a reasonable interpretation. It is to be construed as a whole in the same connected way in which it is given and upon the presumption that the jury did not overlook any portion, but gave due weight to it as a whole. If, when so construed, it presents the law fairly and correctly and in a manner not calculated to mislead the jury, it will afford no ground for reversing the judgment, although some of its expressions, if standing alone, might be regarded as erroneous, or because there may be an apparent conflict between isolated sentences, or because some one of them, taken abstractly, may have been erroneous.

Appeal from District Court, Burleigh County; Nuessle, Judge.

Action by Richard Wyldes, an infant, by J. M. McLaughlin, his guardian, against E. G. Patterson. From judgment for plaintiff, defendant appeals. Affirmed, and rehearing denied.

See, also, 24 N. D. 218, 139 N. W. 577.

This action was brought to recover damages for personal injuries sustained by the plaintiff while in the defendant's employ in the construction of the McKenzie Hotel in Bismarck in the month of November, 1910. The case was first tried before a court and a jury in June, 1911. At the conclusion of the evidence, and on the defendant's motion, a verdict was directed in his favor. On an appeal being taken, this judgment was reversed. See Wyldes v. Patterson, 24 N. D. 218, 139 N. W. 577. The case was retried in June, 1913. At the conclusion of the evidence the defendant again moved the court to direct a verdict in his favor on the grounds that:

“(1) The evidence fails to disclose actionable negligence on the part of the defendant; (2) it conclusively appears from the evidence that the plaintiff assumed the risk and was guilty of contributory negligence; (3) it conclusively appears from the evidence that, if the plaintiff did not assume the risk, and was not guilty of contributory negligence, the injuries were caused either by unavoidable accident or by the negligence of the engineer, who was a fellow servant.”

This motion was denied, and the case submitted to the jury, which found a verdict in favor of the plaintiff, and assessed his damages at the sum of $2,500, with interest. From the judgment entered upon this verdict, this appeal is taken.

Fisk, C. J., and Goss, J., dissenting.

P. J. McLaughlin, of St. Paul, Minn., and H. C. Bradley, of Bismarck, for appellant. Andrew Miller, of Bismarck, and W. P. Costello, of Great Falls, Mont., for respondent.

BRUCE, J. (after stating the facts as above).

The facts in this case, as disclosed upon the second trial, are not materially different from those disclosed upon the former hearing. See Wyldes v. Patterson, 24 N. D. 218, 139 N. W. 577. The only material difference seems to be that the height of the building is more definitely fixed, and is now, excluding the scrollwork of the cornice, which was put on after the accident, put at 78 feet 2 1/2 inches, instead of at 70 feet, as upon the former trial and in the former appeal. The distance of the west wall of the engine house from the base of the building is more accurately measured, but is practically the same as was assumed at the former hearing; that is to say, 20 feet from the base line of the building. The size of the frame building is the same as before, namely, 12 or 14 feet in width and 16 or 18 feet in length, and, as the evidence shows that the engineer must have stood somewhere in the northeast corner of the engine house, and the engine house was lengthwise and parallel with the hotel building on Fifth street, such engineer must have stood somewhere within this distance of 14 feet, that is to say, at the most 34 feet from the base of the building, and probably from 30 to 32 feet therefrom. The length of the engine is shown to have been 10 or 12 feet. The fire box was on the south side of the house, and the drum was north of the engine. It was 10 feet from the top of the engine to the top of the boiler. The engine was placed in the southeast corner of the building, and 25 or 30 feet from the east end of the building line. The levers which operated the brake were on the west side of the engineer, “right in front of him” as he was facing west. The engineer was about 5 feet 10 inches tall. In operating the levers he would face the main building as a general rule. The gangway or runway leading from the elevator back onto the roof of the building was about 3 feet in width, and projected over the edge of the cornice about 6 or 8 inches, so that when the elevator was brought up to the roof its edge connected closely with the projecting end. It seems to have been level from the elevator platform back onto the roof for some 4 feet 8 inches or 4 feet 10 inches.

[1][2] Defendant bases his argument as to the insufficiency of the evidence largely upon the proposition that the evidence shows that the plaintiff could have been easily seen upon the platform of the elevator, and in turn could have easily seen the engine house. Much confusion, however, has been interjected into the case by counsel for appellant failing to distinguish between the inability to see the platform of the elevator and the landing or top of the roof of the building. When the words “landing” or “platform” are spoken of they cannot possibly be the few inches of boarding which extended between the roof and the elevator, for that in no sense was a “landing.” The evidence of the witness O'Connor directly supports the theory of the plaintiff in this case, for he positively states that, standing even a little further away from the building than the engineer must have stood, he could see a man on the elevator or standing on the roof waiting for the elevator, but could not...