Deshazer v. Tompkins

460 P.2d 402, 93 Idaho 267, 1969 Ida. LEXIS 299
Idaho Supreme Court·Decided October 20, 1969·No. 10205·Published·Cited by 45 cases

Opinions

McFADDEN, Chief Justice.

Laverne Deshazer, the plaintiff-appellant and cross-respondent was employed as an irrigator and cattle feeder by Rusty Tompkins and Homer Rhett (defendants-respo.ndents, and cross-appellants) on their rapch about half-way between Riggins and Whitebird, Idaho. On May 3, 1962, while operating a sprinkler system on the ranch, appellant’s arm became caught in the chain drive mechanism of a self propelled sprinkler and was severely damaged. After a long period of medical treatment and hospitalization, the arm was saved and appellant has recovered a partial use thereof. This cause was previously considered by this court when an appeal was taken from a summary judgment granted in favor of the respondents. The summary judgment was reversed and the cause remanded for further proceedings. Deshazer v. Tompkins, 89 Idaho 347, 404 P.2d 604 (1965).

The cause was tried before a jury, which returned a verdict of $29,417.15 in favor of the appellant. Respondents moved for judgment notwithstanding the verdict, which was denied. Judgment was entered for the appellant on the verdict, and respondents filed their motion for new trial, which motion the trial court granted. Appellants appealed from the order granting a new trial and the respondents cross-appealed from the order denying their motion for judgment notwithstanding the verdict.

The cross-appeal will first be considered, inasmuch as if that order were reversed, issues presented by the appellant’s appeal would become moot.

The respondents contend in their cross appeal that the trial court erred in denying their motion for judgment notwithstanding the verdict.

This court has consistently held that a judgment notwithstanding the verdict should be granted only in the absence of evidence to support the verdict. Loosli v. Bollinger, 90 Idaho 464, 413 P.2d 684 (1966); Mabe v. State ex rel. Rich, 86 Idaho 254, 385 P.2d 401 (1963) ; Foster v. Thomas, 85 Idaho 565, 382 P.2d 792 (1963) ; Fawcett v. Irby, 92 Idaho 48, 436 P.2d 714 (1968).

During the trial of this case about the only undisputed facts were that appellant was employed by the respondents at the time of the accident, that he was severely injured by his arm being caught in the irrigation system drive mechanism, and that as a result he has suffered severe and per[269]*269manent injury with resultant damage. Almost every other fact was in dispute and hotly contested between the parties. The respondents urge on their cross-appeal that the trial court erred in not granting their motion for judgment notwithstanding the verdict because they contend, the evidence establishes as a matter of law (1) that appellant .assumed the risk of injury which he sustained and (2) that appellant was contributorily negligent.

The evidence presented at the trial, from respondents’ point of view, indicates that the appellant was given a thorough explanation and instruction on the operation of this particular self-propelled irrigation system. He was told that the machinery was dangerous and that because of a tendency for the mechanism to tip over he should not attempt to operate it on a downhill slope unless he had the assistance of another workman or unless he had weights to hang on the machine to prevent it from tipping over. Testimony on behalf of the respondents also indicates that on the night prior to the accident there was a conversation between appellant and one of his employers and it was determined that it was necessary to use weights on the machine. The weights were at that time actually prepared for use by pouring concrete in buckets that could be hung upon the machinery. The respondents also testified that the buckets were available for use on the morning of the accident and that appellant should have used them or should have taken another workman with him to assist in changing the direction of the machine from uphill to downhill.

The appellant however denied and contradicted this testimony of the respondents. He testified that although the concrete had been poured in the buckets the evening before, it had not as yet hardened and therefore was not available for use. He further testified that he believed that he would have the assistance of another workman, but that the other workman had other duties to perform and did not accompany him in his operation of the irrigation equipment at the time o.f the accident.

It has been stated that the question of contributory negligence is ordinarily one for the jury and that it becomes a question of law only when the facts are undisputed and only one reasonable conclusion can be drawn from them. Deshazer v. Tompkins, supra; Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965); Fawcett v. Irby, supra; Kelley v. Bruch, 91 Idaho 50, 415 P.2d 693 (1966). Likewise the defense of assumption of risk, which was raised by the respondent, generally presents a question of fact, and becomes a question of law only when there is no other reasonable interpretation of the evidence than that the injured party assumed the risk. Deshazer v. Tompkins, supra; Williams v. Collett, 80 Idaho 462, 332 P.2d 1032 (1958); Otts v. Brough, supra.

' In the present case, as was pointed out in the earlier opinion dealing with the facts presented on the motion for summary judgment, Deshazer v. Tompkins, supra, there were several unresolved questions of fact relating to the issue of assumption of risk,

“In order that the servant be held to have assumed a risk arising out of his employer’s negligence it must be shown that the servant knew the facts and appreciated the danger. * * * Whether he [appellant] appreciated the danger from the unguarded chain and sprocket or that he subjected himself to danger in working on the side of the sprinkler where such driving mechanism was located, and whether he had been warned by the master not to work on that side of the sprinkler, were questions for the jury.” 89 Idaho at 356-357, 404 P.2d at 608.

During the trial in the lower court, appellant admitted that he had been warned of and knew of the dangers of operating the sprinkler machinery while going downhill. The evidence, however, shows that two or three days earlier his employer, knowing of the lack of weights and unavailability of assistance from other employees, inquired of appellant whether, he .believed he could [270]*270accomplish the operation of the machinery downhill alone. Although somewhat hesitant, appellant attempted the task and was able at that time to make the change in direction on the sprinkler from uphill to downhill operation without incident. It cannot be said that as a matter of law a reasonable man having already attempted and accomplished the operation, as appellant did, of changing the direction of the sprinkler should not have attempted the operation a second time unaided by weights or other employees.

The evidence on the question of assumption of risk is not so clear as to require only one interpretation.

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Deshazer v. Tompkins, 460 P.2d 402, 93 Idaho 267, 1969 Ida. LEXIS 299 (Idaho 1969).

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