Wyldes v. Patterson

• Decision Date: 28 December 1912
• Citation: 139 N.W. 577,24 N.D. 218
• Parties: WYLDES v. PATTERSON.
• Court: North Dakota Supreme Court

24 N.D. 218

139 N.W. 577

WYLDES

v.PATTERSON.

Supreme Court of North Dakota.

Dec. 28, 1912.

Syllabus by the Court.

Where, while in course of construction, material is raised to and lowered from the top of the roof of a building 70 feet high, by a temporary elevator, upon and from which an employé working upon said roof is required to place and remove empty and filled wheelbarrows, and such elevator is raised and lowered by means of a drum and pulleys, operated by a steam engine placed in the street, it is for the jury to say whether, under the circumstances of the case, a system of signals was necessary to be provided by the employer in order to render the plan of operation reasonably safe.

If, in such cases, a system of signals is provided, such system should be communicated to and be required to be enforced by all of the employés interested. When therefore the evidence showed that the engineer, who operated the engine which lowered and raised 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 that the plaintiff, himself, was led to believe that such system was not in operation, it cannot be said, as a matter of law, either that the employer had discharged his duty in that behalf, or that such employé who is injured by a sudden lowering of the elevator had assumed the risk of such confusion of method. So, too, the adequacy and reasonable sufficiency of the system of signals provided, if system there was, was for the jury, and not for the court to pass upon.

Pleadings examined, and held to be sufficient to support a verdict under the particular facts of the case, if the evidence of the plaintiff is believed by the jury.

It is error to direct a verdict where the evidence on which such direction is asked and based is disputed by the physical facts of the case.

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

Action by Richard Wyldes, an infant, by J. W. McLaughlin, guardian ad litem, against E. G. Patterson. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

Plaintiff, a minor about 19 years of age, brings this action through his guardian to recover damages for personal injuries received by him while in defendant's employment as a common laborer engaged in and about the construction of a seven-story hotel building in the city of Bismarck. The accident occurred during the time the roof of such building was in course of construction; plaintiff at such time being in the act of placing a wheelbarrow on a temporary freight elevator which had been erected in the street some four feet out from the east wall of the building at the base, and a foot or a foot and a half from the cornice work at the summit of the building, for the purpose of permitting it to be lowered to the ground to be refilled with roofing material. While in the act of placing such wheelbarrow on the elevator lift, such elevator lift was suddenly and without warning lowered, and plaintiff in some manner was thrown or drawn onto such elevator lift, and the force of the fall, or the sudden stoppage of the elevator by the engineer after such fall, caused the wire cable to part, and he was precipitated to the ground, receiving the injuries complained of.

The complaint alleges that defendant was guilty of the following acts of negligence, which proximately caused the injuries: (1) That such elevator and scaffold were improperly erected and unfit for the purposes for which they were used, in that the cable and fastenings used to operate such elevator were weak and defective, and not of the proper strength and weight for the purposes used; (2) that no appliance was used or supplied to prevent the cage of the elevator from falling in case of the parting of the cable or the happening of any other contingency by which the cage might become loose or disconnected from the fastenings; (3) that the said elevator cable and fastenings were not properly inspected, repaired, or replaced, but were allowed to become worn, weak, and defective, and out of repair; (4) that the said steam engine used to operate the elevator was so inclosed that the engineer or person operating the same could not see the landing where the elevator stopped; (5) that no electrical or other proper system of signals was provided for said elevator; (6) that the elevator cage was suddenly and without warning lowered from in front of said landing, and the plaintiff, who was then about to roll a wheelbarrow on the said lift, without negligence on his part, was drawn forward onto the said lift with great force and violence. The answer puts in issue the averments of the complaint as to the defendant's negligence, and alleges that the accident was caused solely by plaintiff's own negligence and that of a fellow servant; and, also, that such accident arose from the dangers and risks incident to such employment, which dangers and risks were knowingly assumed by plaintiff. At the conclusion of the testimony a verdict was directed against the plaintiff on defendant's motion, and the appeal is from the judgment entered in defendant's favor pursuant thereto.

Miller & Costello, of Bismarck, for appellant. Cochrane & Bradley, of Bismarck, and P. J. McLaughlin, of St. Paul, Minn., for respondent.

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

The rule which excuses a master for the negligence of a coemployé was not recognized at all in the common law prior to the year 1837, or in America prior to 1838. In the parent case of Priestley v. Fowler, 3 Mees & Wellesby, 1, the servant of a butcher was injured by the overloading of a butcher's wagon by a fellow servant, and in which he was directed by his master to ride. The case was clearly one in which the servant could reasonably and easily have protected himself, and was evidently decided upon that theory. “The mere relation of master and servant never can imply,” says the court, “an obligation on the part of the master to take more care of the servant than he may be reasonably expected to do of himself. He is, no doubt, bound to provide for the safety of his servants in the course of his employment, to the best of his judgment, information, and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, if not...