Abelstab v. Johnson

Bronson, J. This is an action for personal injuries. The plaintiff was injured on October 20, 1917, in a lignite coal mine near Garrison, North Dakota, owned and operated by the appellant. In the trial court, the jury rendered a verdict for the plaintiff for $3,000, and upon the judgment entered thereupon and the order of the trial court denying appellant’s motion for judgment non obstante this appeal is prosecuted. In the specifications of error the appellant challenges the sufficiency [402] of the evidence to justify the verdict, and contends that the evidence discloses that the plaintiff was guilty of contributory negligence: First, in overloading the car contrary to the instructions of the master; second, in sitting on the rail back of the car while the car was being hoisted up the incline; third, in continuing to work and in voluntarily placing himself in danger when he knew or should have known the condition of the cable. It is, of course, elemental that questions of contributory negligence and of assumption of the risk are ordinarily for the jury, and that unless it appears from the evidence that reasonable men, acting prudently, could draw only one conclusion therefrom, this1 court will not disturb the findings of the jury thereupon. Messenger v. Valley City Street & Interurban R. Co. 21 N. D. 82, 32 L.R.A. (N.S.) 881, 128 N. W. 1023. There is evidence in this case of probative force to show that the plaintiff, aged twenty-seven year’s, entered the employment, of the appellant October 25, 1917, as pusher in his lignite coal mine. That his duty consisted of pushing out cars of lignite coal that had been mined by the miners therein, and of loading cars with clay to be removed from such mine, and in attaching such loaded cars to a cable preparatory to the same being hauled up an incline to the unloading place at the entrance of the mine; theretofore the plaintiff had been employed in such coal mine in the years 1915 and 1916 with similar duties. That in 1916, when the plaintiff was working in such mine, the appellant instructed the plaintiff to watch these cars, and, if the same went off the track while being hauled up, to ring the bell, in order to stop the team so hauling the same up the incline. On October 27, 1917, the plaintiff had pushed out a ear loaded with clay to the place where the cable was usually affixed to such car. That morning another person, down in the mine, assisting, fastened the cable to the car and rang the bell. The plaintiff stood back of the car some 4 or 5 feet, and as it started up the incline he squatted on his haunches to see that the car kept on the track, and, if it did not, to ring the bell. As the ear proceeded up the incline the cable broke suddenly at the place where it was hooked on the car and the car ran down the incline; the plaintiff started to run toward some switches in the opposite direction into the mine, stumbled and fell. The car came upon and ran over him, injuring [403] Mm to sucb an extent that the amputation of Ms leg was necessary. The plaintiff was told by the appellant not to load with clay the cars, as full as he did with coal, for the reason that clay was heavier. The testimony concerning the extent to which the car was loaded with clay varies from over half full to overflowing. The plaintiff testifies that he followed the instructions of the appellant and did not load such car as full as it was loaded with coal. There is evidence in the record that the cable in question was worn; that the appellant knew its condition and had ordered a new cable, and that it was badly worn at this place where the loop was formed that connected such cable with the car. There is also evidence in the record that the ear ran off the track frequently, and it is not disputed that the plaintiff was told by the appellant to watch the car* and ring the bell when it ran off the track. But the appellant claims that right near this place where the cable is hooked to the car in question there is a manhole or place of safety which the plaintiff knew and which he could and should have used; that from this place he could view the car as it proceeded up the incline and ring the bell in case it left the track; also that the plaintiff knew or ought to have known of the condition of this cable, and that he voluntarily placed himself in a position of danger unnecessarily and contrary to instructions given. The plaintiff’s testimony, however, denies knowledge of the condition of the cable; that he did not know about the manhole, that he had not been given instructions concerning the same, and that he took this squatting position behind the car in order to be able to watch the car as it proceeded up the incline. At the time the plaintiff had on a miner’s lamp, and the place where he worked was not very light except such as was received from this lamp or came in from the entrance way distant. Under this evidence this court cannot say as a matter of law that the plaintiff either assumed the risk or was guilty of contributory negligence in taking the position that he did on the day of the accident for the purposes that he has explained in his testimony. Under the evidence we are satisfied that this was fairly a question for submission to the jury, and that their findings upon such evidence should not be disturbed. The trial court committed no error in submitting the question of defendant’e negligence to the jury. It was the duty of the master to furnish reasonably safe appliances [404] and a reasonably safe place for Mm to work, and tbe servant bad tbe right to assume that tbe master bad fulfilled bis duty. On tbe other band, the master was not required to instruct or protect tbe servant against obvious known and necessary dangers, where tbe servant bad opportunity to understand and perceive tbe same; and it was tbe duty of tbe servant to use reasonable care to inform himself of these hazards to which be may be exposed, but he was not under duty to inspect tbe premises and appliances to determine whether they were safe. Tbe fact that tbe servant bad as good an opportunity as tbe master to observe and know of tbe existing defective appliances involving danger to him did not necessarily charge him as a matter of law with assumption of tbe risks involved or with contributory negligence. Umsted v. Colgate Famers Elevator Co. 18 N. D. 309, 122 N. W. 390; Meehan v. Great Northern R. Co. 13 N. D. 432, 101 N. W. 183; Scheurer v. Banner Rubber Co. 227 Mo. 347, 28 L.R.A.(N.S.) 1207, 1215, 126 S. W. 1037, 21 Ann. Cas. 1110. Tbe judgment of tbe trial court is affirmed.