Wyldes v. Patterson

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

139 N.W. 577

24 N.D. 218

WYLDES, by McLaughlin, Guardian ad Litem v. PATTERSON

Supreme Court of North Dakota

December 28, 1912

Appeal from the District Court for Burleigh County, Winchester, J Action for damages sustained by reason of personal injuries received by plaintiff while in the employ of defendant. From a directed verdict for defendant, plaintiff appeals.

Reversed.

Judgment of the District Court reversed, and a new trial ordered.

Miller & Costello, for appellant.

It is not necessary to allege specifically that the master failed to instruct, the general allegation of negligence being sufficient. Ingerman v. Moore, 90 Cal. 410, 25 Am St. Rep. 138, 27 P. 306, 13 Am. Neg. Cas. 442; Texas & P. R Co. v. Brick, 83 Tex. 598, 20 S.W. 511.

It is breach of duty of master to expose an inexperienced servant to danger, even with his consent. Hughes v. Chicago, M. & St. P. R. Co. 79 Wis. 264, 48 N.W. 259.

Capacity of infant to appreciate dangers, if any, of employment, is a question for the jury. Costello v. Judson, 21 Hun, 396; James v. Rapides Lumber Co. 50 La.Ann. 717, 44 L.R.A. 33, 23 So. 469; Brazil Block Coal Co. v. Young, 117 Ind. 525, 20 N.E. 423; Ewing v. Lanark Fuel Co. 65 W.Va. 726, 29 L.R.A.(N.S.) 487, 65 S.E. 200; Mundhenke v. Oregon City Mfg. Co. 47 Ore. 127, 1 L.R.A. (N.S.) 278, 81 P. 977.

Results of experiments not permitted to be given in evidence unless first shown that conditions are in all respects substantially identical with those existing at the time of the accident. Libby, McNeill & Libby v. Sherman, 146 Ill. 540, 37 Am. St. Rep. 191, 34 N.E. 801; Lake Erie & W. R. Co. v. Mugg, 132 Ind. 168, 31 N.E. 564; Com. v. Piper, 120 Mass. 185; Eidt v. Cutter, 127 Mass. 522; State v. Justus, 11 Ore. 178, 50 Am. Rep. 470, 8 P. 337, 6 Am. Crim. Rep. 511; Klanowski v. Grand Trunk R. Co. 64 Mich. 279, 31 N.W. 275.

Tendency of such evidence is to mislead jury. Burg v. Chicago, R. I. & P. R. Co. 90 Iowa 106, 48 Am. St. Rep. 419, 57 N.W. 680; Hurst v. Chicago, R. I. & P. R. Co. 49 Iowa 76.

Question of negligence of defendant, and contributory negligence of plaintiff, were questions of fact for the jury. Pyke v. Jamestown, 15 N.D. 157, 107 N.W. 359; Carr v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N.D. 217, 112 N.W. 972; Hall v. Northern P. R. Co. 16 N.D. 60, 111 N.W. 609, 14 Ann. Cas. 960; Pendroy v. Great Northern R. Co. 17 N.D. 433, 117 N.W. 531; Ingerman v. Moore, 90 Cal. 410, 25 Am. St. Rep. 138, 27 P. 306, 13 Am. Neg. Cas. 442.

To charge plaintiff with contributory negligence, the evidence must be clear and the facts undisputed. Field, Damages, p. 519; Beach, Contrib. Neg. § 447.

Duty of master to furnish reasonably safe instrumentalities, and see that they are kept in safe condition; and plaintiff assumed no risks incident to failure of master to furnish safe instrumentalities. Cameron v. Great Northern R. Co. 8 N.D. 124, 77 N.W. 1016, 5 Am. Neg. Rep. 454; Cook v. St. Paul, M. & M. R. Co. 34 Minn. 45, 24 N.W. 311, 16 Am. Neg. Cas. 247; Hooper v. Great Northern R. Co. 80 Minn. 400, 83 N.W. 440, 8 Am. Neg. Rep. 453; Perras v. A. Booth & Co. 82 Minn. 191, 84 N.W. 739, 85 N.W. 179, 9 Am. Neg. Rep. 328.

Question of what risks are assumed by minor is one for the jury, and if he has not been instructed as to dangers of his employment, the jury must determine from all the facts whether he has acquired sufficient knowledge of the danger to exempt the employer from liability. Johnson v. Griffiths-Sprague Stevedoring Co. 45 Wash. 278, 8 L.R.A.(N.S.) 432, 88 P. 193; Siegel, C. & Co. v. Trcka, 218 Ill. 559, 2 L.R.A.(N.S.) 647, 109 Am. St. Rep. 302, 75 N.E. 1053, 19 Am. Neg. Rep. 166; Roth v. Northern Pacific Lumbering Co. 18 Ore. 205, 22 P. 842; Bare v. Crane Creek Coal & Coke Co. 61 W.Va. 28, 8 L.R.A.(N.S.) 284, 123 Am. St. Rep. 966, 55 S.E. 907; Mahoney v. Dore, 155 Mass. 513, 30 N.E. 366.

Cochrane & Bradley (P. J. McLaughlin of counsel), for respondent.

Not the master's duty to warn or instruct, where no amount of warning or instruction will make the danger plainer to the employee than it is made by the use of his own eyes. Umsted v. Colgate Farmers' Elevator Co. 18 N.D. 309, 122 N.W. 390; Beleal v. Northern P. R. Co. 15 N.D. 322, 108 N.W. 33, 20 Am. Neg. Rep. 453; Carlson v. Sioux Falls Water Co. 8 S.D. 47, 65 N.W. 419; Dunn v. Great Lakes Dredge & Dock Co. 161 Mich. 551, 126 N.W. 833; Kraczek v. Falk Co. 142 Wis. 570, 126 N.W. 30; Galloway v. J. W. Turner Improv. Co. 148 Iowa 93, 126 N.W. 1033; Ward v. Connor, 182 Mass. 170, 64 N.E. 968; Sutton v. Des Moines Bakery Co. 135 Iowa 390, 112 N.W. 838; Fischer v. Goldie, 132 Mich. 574, 94 N.W. 5.

Experiments made under similar, though not identical, circumstances, are admissible. Burg v. Chicago, R. I. & P. R. Co. 90 Iowa 117, 48 Am. St. Rep. 419, 57 N.W. 680; Missouri P. R. Co. v. Moffatt, 56 Kan. 673, 44 P. 607, 11 Am. Neg. Cas. 554; Eidt v. Cutter, 127 Mass. 524; Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 238, 51 L.R.A. 781, 86 Am. St. Rep. 478, 59 N.E. 657; Krueger v. Brenham Furniture Mfg. Co. 38 Tex. Civ. App. 401, 85 S.W. 1156; Smith v. State, 2 Ohio St. 518; Byers v. Nashville, C. & St. L. R. Co. 94 Tenn. 354, 29 S.W. 128

OPINION

Statement

BRUCE, J.

Plaintiff, a minor about nineteen 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 4 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.

BRUCE, J. The rule which excuses a master for the negligence of a coemployee 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 & Welsb. 1, Murph. & H. 305, 1 Jur. 987, 7 L. J. Exch N.S. 42, 19 Eng. Rul. Cas. 102, 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 the master and the 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 reasonably be expected to do of himself. He is no doubt bound to provide for the safety of his servant 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 in all, he is just as likely to be acquainted with the probability and extent of it as the master. In that sort of employment, especially, which is described in the declaration in this case, the plaintiff must have known as well as his master, and probably better, whether the van was sufficient,...