Jackson v. Van Buskirk

424 N.W.2d 148, 1988 S.D. LEXIS 72, 1988 WL 52176

• Court: South Dakota Supreme Court
• Decided: May 25, 1988
• Docket: 15763
• Status: Published

Opinions

WUEST, Chief Justice.

Richard M. Jackson appeals from an order granting a directed verdict to Merlyn J. Van Buskirk in this negligence action. We affirm.

Jackson is 60 years old and was a salesman in the construction industry for many years. But in August of 1983, Jackson went to work for Van Buskirk, his son-in-law, as a farm laborer. One of Jackson’s duties was to assemble and install an overhead garage door in one of the farm buildings. Two other employees, Bob Westall and Dewey Minske, also helped with the work. At some point during the installation of the door, Westall brought his own 24 foot aluminum extension ladder to the job site. Westall took the ladder apart so that each half could be used separately. The bottom half had rubber safety pads on the end to prevent slipping, while the top half had red plastic caps on both ends. Jackson and the other men used both halves of the ladder on numerous occasions without any problems. Van Buskirk observed the use of the top half of the ladder, but did not warn the men of any possible danger.

On January 17, 1984, Jackson went to work on the door by himself. He saw the top half of Westall’s ladder in the comer of the building, so he set the ladder up as he had in the past and climbed to the top. The ladder slipped on the floor and Jackson fell, injuring his nose, arm, and ribs.

Jackson filed suit against Van Buskirk alleging that Van Buskirk negligently failed to provide safe working conditions and suitable equipment. Van Buskirk affirmatively alleged the defenses of contributory negligence and assumption of the risk. The case was tried to a jury, and at the close of Jackson’s case the trial court granted a directed verdict to Van Buskirk on the basis of Jackson’s contributory negligence.

On appeal, Jackson argues that the directed verdict was improper since negligence and contributory negligence are normally jury questions. He maintains that his experience as a salesman rather than a farmer tends to reduce or eliminate his negligence as compared to the negligence of Van Buskirk. We disagree.

Upon a motion for a directed verdict, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the non-moving party, and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s rulings on such motions are presumed correct and this court will not seek reasons to reverse. Sabag v. Continental South Dakota, 374 N.W.2d 349 (S.D.1985); Cox v. Brookings Intern. Life Ins. Co., 331 N.W.2d 299 (S.D.1983).

We have often recognized that it is the duty of a master to furnish his servants with a reasonably safe place to work and with reasonably safe tools and equipment with which to perform the work. See, e.g., Smith v. Smith, 278 N.W.2d 155 (S.D.1979); Bunkers v. Mousel, 83 S.D. 45, 154 N.W.2d 208 (1967); Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528 (1958). However, where the master has furnished a suitable place to work and suitable tools, if the servant is mature and sensible and has had some experience in the work being done, he must look after himself as to all obvious dangers in the details of the work. Furthermore, the master cannot be held liable for failure to furnish a safe place to work if the danger is so obvious and is before the servant’s eyes to such extent that he must know, by the use of ordinary intelligence, the danger that confronts him. Smith, supra; Bunkers, supra; Platt v. Meier, 83 S.D. 10, 153 N.W.2d 404 (1967); Stoner, supra. As stated in Stoner, “the master owes no duty to warn or instruct his servants of dangers obvious, to a person of ordinary intelligence and judgment.” 77 S.D. at 399, 92 N.W.2d at 530 (quoting Blomberg v. Trupukka, 210 Minn. 523, 299 N.W. 11 (1941)).

Here, the danger in using the ladder was obvious to Jackson. He knew the extension ladder had been taken apart; he knew he was using the top half of the ladder; and he knew the top half of the ladder did not have rubber safety pads for use on the floor. Jackson did not have to be a farmer to recognize this danger. The record indicates that there were other ladders and scaffolding which could have been used by Jackson, but he never complained or asked for a more suitable ladder. Under such circumstances, Van Buskirk had no duty to warn Jackson of the danger. Stoner, supra. Consequently, there is no evidence of negligence on the part of Van Buskirk, and the trial court properly directed a verdict in his favor.

Affirmed.

MORGAN and MILLER, JJ., concur. SABERS, J., concurs specially. HENDERSON, J., dissents.