York v. General Utility Corp.

• Decision Date: 27 December 1919
• Citation: 176 N.W. 352,44 N.D. 51
• Court: North Dakota Supreme Court

176 N.W. 352

44 N.D. 51

GILFORD YORK, Plaintiff, v. GENERAL UTILITY CORPORATION and James Rheinfrank, Defendants

Supreme Court of North Dakota

December 27, 1919

Appeal from the District Court of Eddy County, C. W. Buttz, Judge.

Judgment affirmed.

Judgment affirmed. Respondent entitled to his statutory costs and disbursements on appeal.

Lawrence & Murphy and Watson, Young, & Conmy, for defendants and appellants.

"If two ways are open to a person to use, one safe and the other dangerous, the choice of the dangerous way, with knowledge of the danger, constitutes contributory negligence." 29 Cyc. 520.

"In every case there is a preliminary question for the judge whether there is evidence from which the jury may properly proceed to find a verdict." Anderson v Phillips, 160 N.W. 315.

There is no liability of the defendant Rheinfrank to any person because of the method of construction of this defendant company of its business instrumentalities. There is no question about the law on that point. Floyt v. Shenango Furnace Co. 186 F. 539; Bryce v. Southern R Co. 125 F. 959; Mechem, Agency, §§ 560, 573; Greenberg v. Whitcomb Lumber Co. 90 Wis. 231, 28 L.R.A. 439, 63 N.W. 93; Murray v. Usher, 117 N.Y 542; Drake v. Hagan, 108 Tenn. 265, 67 S.W. 470.

"At most, the allegation charges no more than nonfeasance, mere omission on the part of the foreman to perform the master's duty as to inspection and repairs. For this the foreman is not liable to the plaintiffs." Macutis v Cudahy Packing Co. 203 F. 291.

"Where a joint tort is charged there can be no recovery on proof of one or more separate torts." Goodman v. Coal Twp. 206 Pa. 621, 56 A. 65.

"Proof of separate acts not committed with a common design or for a common purpose, and without concert, will not authorize a joint recovery. . . . Where two or more commit separate trespasses, or do separate acts tending to produce injury to another without concert, there is no joint liability, and consequently there can be no joint recovery." Howard v. Union Traction Co. (Pa.) 45 A. 1077; Weist v. Philadelphia, 58 L.R.A. 666; Jayne v. Loder, 7 L.R.A. (N.S.) 991; William Tackaberry Co. v. Sioux City Service Co. 40 L.R.A. (N.S.) 114; Fortmeyer v. National Biscuit Co. 37 L.R.A. (N.S.) 573.

For separate and distinct wrongs in nowise connected by the ligament of a common purpose, actual or implied by law, the wrongdoers are liable only in separate actions, and not jointly in the same action. Citing cases, 15 Enc. Pl. Pr. p. 562; Livesay v. First Nat. Bank, 6 L.R.A. (N.S.) 601, 602.

In a special verdict, if any fact essential to sustain a judgment is not found, there can be no judgment on the verdict. McGongie v. Godon, 11 Kan. 167; Bibb v. Hall, 101 Ala. 87, 14 So. 98; Brock v. Louisville & N. R. Co. 114 Ala. 431, 21 So. 994; Carter v. Dublin Bkg. Co. 104 Ga. 569, 31 S.E. 407; Chicago & N.W. R. Co. v. Dunleavy, 129 Ill. 132, 22 N.E. 15; Rary v. Lee, 16 Ind.App. 121, 44 N.E. 318; Shipps v. Atkinson, 8 Ind.App. 505, 36 N.E. 375; Moore v. Moore, 67 Tex. 293, 3 S.W. 284; Kerr v. Hutchins, 46 Tex. 384; Ward v. Cochran, 150 U.S. 597, 37 L.Ed. 1195, 14 S.Ct. 230; R. v. Haues, 2 Ld. Raym. 1518.

And an omission of a material fact from a special verdict is not cured by the fact that the circumstances stated may be sufficient to warrant an inference or presumption of the existence of the matter omitted. Jones v. State, 2 Swan, 399.

Nor can anything be taken by implication or intendment. McCormick v. Royal Ins. Co. 163 Pa. 184, 29 A. 747; Vansyckel v. Stewart, 77 Pa. 124; Loew v. Stocker, 61 Pa. 347; Morse v. Chase, 4 Watts, 456; Craven v. Gearhart, 1 W. N. C. 257; Lee v. Campbell, 4 Port. (Ala.); Sewell v. Glidden, 1 Ala. 52; Brock v. Louisville & N. R. Co. supra; Noblesville Gas & Improv. Co. v. Lehr, 124 Ind. 79, 24 N.E. 579; Bloomington v. Rogers, 9 Ind.App. 230, 36 N.E. 439; Lake Shore & M. S. R. Co. v. Stupak, 123 Ind. 210, 23 N.E. 246; Rice v. Evansville, 108 Ind. 7, 58 Am. Rep. 22, 9 N.E. 139; Pittsburgh, C. & St. L. R. Co. v. Spencer, 98 Ind. 186; Shipps v. Atkinson, supra; Alexandria Min. & Exploring Co. v. Irish, 16 Ind.App. 534, 44 N.E. 680; Louisville, N. A. & C. R. Co. v. Bates, 146 Ind. 564, 45 N.E. 108; O'Neal v. Chicago & I. C. R. Co. 132 Ind. 110, 31 N.E. 669; State v. Burdon, 38 La.Ann. 357; State v. Ritchie, 3 La.Ann. 511; Com. v. Dooly, 6 Gray. 360; Com. v. Fishblatt, 4 Met. 354; Birckhead v. Brown, 5 Hill, 634; Williams v. Willis, 7 Abb. Pr. 90; Brush v. Batten, 15 N.Y.S. R. 548; Jenks v. Hallet, 1 Caines, 60; State v. Belk, 76 N.C. 10; State v. McGhee, 143 N.C. 640, 57 S.E. 157; State v. Stephanus (Ore.) 99 P. 428; Jones v. State, 2 Swan, 399; Tunnell v. Watson, 2 Munf. 283; Farr v. Newmand, 4 T. R. 621.

Where negligence is in issue, and the facts are such that different conclusions may be drawn, the primary facts from which such conclusions are drawn by the jury must be stated in a special verdict. Wabash R. Co. v. Miller, 18 Ind.App. 549, 48 N.W. 663; Walkup v. May, 9 Ind.App. 409, 35 N.W. 917; Pittsburgh, C. & St. L. R. Co. v. Spencer, 98 Ind. 186.

"A special verdict finding that one of the parties to the action has been guilty of negligence is a mere statement of a conclusion, and will not support a judgment." Chicago, St. L. & P. R. Co. v. Burger, 124 Ind. 275, 24 N.E. 981.

And an interrogatory as to whether or not the injury in question was received without any fault or negligence upon the part of the defendant is improper, as involving both the law and the facts. Huntington County v. Bonebrake, 146 Ind. 317, 45 N.E. 470; Hadley v. Lake Erie & W. R. Co. 21 Ind.App. 675, 51 N.E. 337.

Interrogatories submitted to a jury in connection with a general verdict should be so clear and concise as to be readily understood and answered by the jury. Freedman v. New York, N. H. & H. R. Co. 81 Conn. 601, 71 A. 901.

They should be made up of sufficient direct questions to cover singly all material issues of fact raised, by the pleadings and controverted on the evidence, each question admitting of an answer in the affirmative or negative. Hallum v. Omro, 122 Wis. 337, 99 N.W. 1051; Mauch v. Hartford, 112 Wis. 40, 87 N.W. 816; Goessel v. Davis, 100 Wis. 678, 76 N.W. 768; Flaunery v. Kansas City, St. J. & C. B. R. Co. 23 Mo.App. 120.

Rinker & Duell, Julian E. Brown, and Daniel H. Hollihan (T. D. Sheehan, of counsel), for respondent.

"One injured by an electric wire cannot be presumed, in the absence of evidence, to have had knowledge that moisture delayed the insulation of such a wire" Giraudi v. Electric Emp. Co. (Cal.) 40 P. 108; Predmore v. Consumers' Light & P. Co. 91 N.Y.S. 116.

"A lineman of a telephone company, repairing wires attached to the same pole as electric light wires, was not negligent in allowing a wire which he was handling without insulation to come in contact with the light wire, if he was justified in believing that the insulation which the light company was required by ordinance to use on its wires was sufficient to prevent the escape of the current by the contact of another wire, and that this particular wire was so insulated." Knowlton v. Des Moines Edison Light Co. (Iowa) 90 N.W. 918; Mangan v. Louisville Electric Light Co. (Ky.) 91 S.W. 703; Gilbert v. Duluth General Electric Co. (Minn.) 100 N.W. 653.

"One working on a roof of a building near wires of an electric company may presume that they are properly insulated, unless the defect is visible to such examination as he ought to make." Will v. Edison Electric Illuminating Co. (Pa.) 50 A. 161; McCabe v. Narragansett Electric Lighting Co. (R. I.) 59 A. 112.

"In places where electric wires should be insulated for safety to persons, one may assume that they are so insulated, if he knows not to the contrary." Thomas v. Wheeling Electric Co. (W. Va.) 46 S.E. 216; Commonwealth Electric Co. v. Rose (Ill.) 73 N.E. 780; Paine v. Electric Illuminating & P. Co. 72 N.Y.S. 279.

"We have no statute in this state fixing any rule upon the subject of the joinder of parties defendant in actions in tort. . . . We must, therefore, refer to the rules of the common law. The authorities even upon this branch of the subject are by no means harmonious, but the weight of reason sustains the right of the joinder. The following authorities sustain this proposition." Newman v. Towle, 37 N.J.L. 89; Greenburg v. Whitcomb, 90 Wis. 225; Wright v. Crompton, 53 Ind. 337; Consolidated v. Keefer, 26 Ill.App. 466; Southern v. Sittasen (Ind.) 74 N.E. 898; Lynch v. Elektron, 88 N.Y.S. 70; Wright v. Wilcox, 19 Wend. 343; Colegrove v. New York, 20 N.Y. 492; Cuddy v. Horn (Mich.) 10 N.W. 32.

The negligence of a mine superintendent in permitting the use of an unsafe shaft was not merely nonfeasance, but that the same amounted to misfeasance, and that he could be joined in an action with his employer for injuries resulting from such negligence. Lewisville Ore Co. v. Vincent, 95 S.W. 179; Southern R. Co. v. Rowe, 59 S.W. 463; Eastment v. Texas R. Co. 92 S.W. 838; Ellis v. McMaughter, 42 N.W. 1113; Lous v. Davis, 70 P. 491.

"The section boss and a railway company can be sued when the sole ground of the liability of the railway company is in the act of the section boss alone." Morrison v. R. Co. 74 P. 1064; Howe v. R. Co. (Wash.) 70 P. 1100; Able v. R. Co. 73 S.C. 173; Chesapeake R. Co. v. Dixon, 179 U.S. 131.

Injury to a property owner whose building an electric light company had contracted to light by means of a harmless voltage through incandescent electric lamps, the equipment furnished by the company, by the escape of the current from the wires when he attempts to turn the light at a particular lamp raises a presumption of negligence on the part of the company. Alexander v. Nanticoke Light Co. 209 Pa. 571; Crow v. Nanticoke Light Co. 209...