VOGEL, Judge.
The defendant, Symons Corporation (hereinafter manufacturer), has appealed from an order of the trial court denying its motion for judgment notwithstanding the verdict or in the alternative for a new trial, following entry of judgment based on a jury verdict in favor of the plaintiff in the amount of $25,033.90.
This is a products liability case in which the plaintiff, Robert Seibel (hereinafter employee), who was injured while working for Morrison-Knudsen & Associates (hereinafter employer), seeks recovery for injuries from the manufacturer, which manufactured steel concrete forms called “Sy-mons Superforms,” on which the employee was working when he fell and was injured as a result of the breaking of a weld on a V-shaped end-rail support rod to which he had attached the lanyard of his safety belt while he was in the process of assembling the steel concrete forms. The employee’s claim is based on express warranty, implied warranty of fitness, and negligence in design or manufacture. The defendant interposed several defenses, including assumption of risk, contributory negligence, that it had adequately warned the employee of the danger which caused his injury, and that the manufacturer was insulated from liability by reason of its issuance of a warning to the employer as to the danger.
Morrison-Knudsen is a large contractor. At the time of this industrial accident it was involved in building a Missile Site Radar (MSR) complex associated with the Anti-Ballistic Missile Site located in the area adjacent to Nekoma, North Dakota. The components of the Symons Superform System, with the aid of the technical manual supplied by the manufacturer to its vendee, Morrison-Knudsen, were to be assembled at the contract site by Morrison-Knudsen into what are called “gang sections.” These gang sections are then moved from place to place on the jobsite by cranes and trucks, and when placed in position the Symons Superform System acts as a mold for the placement of concrete to cast concrete walls. When the concrete has hardened, the forms are removed by crane and set into the next position for the casting of more concrete walls. The gang forms are disassembled and reassembled on the jobsite from time to time to accommodate different wall-forming requirements.
At the time of this industrial accident, two such gang sections had been set up facing each other to form the mold into which concrete would be poured to form a concrete wall of an elevator shaft. To complete the assembly it was necessary for Morrison-Knudsen’s workmen to put into [53]*53place ties to provide the necessary spreader action between the gangs in order to maintain accurate concrete wall thickness. This is accomplished by placing “she-bolt” ties through the gangs. One employee works on each side of the outer surface of the two facing gangs of Symons Superforms. The injured employee was working on one side of these gangs while in the process of inserting and securing a she-bolt tie. He had climbed some 16 or 18 feet above the bottom of the gang, where he attached his safety belt lanyard to one of the V-shaped end-rail support rods in order that he might have both hands free with which to work. The employee relied on his safety belt to keep him in a vertical position. While he was standing with his feet on one of the horizontal crossbars of the gang, the light weld at the end of the V-shaped end-rail support rod, around which he had placed the lanyard of his safety belt, gave way and the lanyard slipped off the end of the V-shaped rod causing him to fall approximately 16 or 18 feet onto a wooden platform below. His injuries were serious.
At the close of the plaintiff’s case and again at the close of the entire case, the manufacturer moved for a directed verdict on several grounds, one of which was that the evidence established that the manufacturer had given its vendee (the employer) adequate warning not to hang off V-shaped end-rail support rods. It argued that failure to pass on the warning to the employees was the fault of the employer and not the manufacturer, and that there could be no recovery from the manufacturer by the employee on the basis of the failure of the manufacturer-vendor to warn the vendee’s employee. The motion was resisted, and the trial court denied it. The action was submitted to the jury, and after entry of judgment the manufacturer moved to have the verdict and judgment set aside, and to have judgment entered in accordance with its motion for a directed verdict. It also moved in the alternative for a new trial, pursuant to Rule 50(b), N.D.R.Civ.P. Both motions were denied by the trial court.
When the manufacturer, as vendor of the Symons Superform, made delivery of the Superform to the employer at its job-site in a semi-disassembled state for assembly and use, it furnished the employer with several copies of a technical manual containing instructions for the assembly and use of the Symons Superform. The manual is a book about one inch thick, containing about 115 pages. The first three pages are a section headed “Introduction.” On page 3 of this section appears the following:
“E. SAFETY
“1. Horizontal crossmembers and the vertical rod facilitate easy, safe climbing and safety belt attachment. DO NOT HANG OFF V-SHAPED END RAIL SUPPORT RODS.
“2. All connections are bolted eliminating falling connecting hardware.”
The sentence “DO NOT HANG OFF V-SHAPED END RAIL SUPPORT RODS” is described to us by the manufacturer as the warning which it issued to the employer and the employee.
There is no evidence that the so-called warning was ever communicated to the employee. There is evidence that the manuals were received by the employer and were discussed at some meetings of its employees.
The location and appearance of the V-shaped end-rail support rods was such that the jury could find that using them for support was a reasonable use, in the absence of an adequate warning not to do so.
This action is against the manufacturer only. The negligence, if any, of the employer is relevant only if it is the sole proximate cause of the plaintiff’s injury. For the purpose of this appeal we may assume that the employer was negligent and [54]*54consider only the question of whether the manufacturer was also negligent.
Much of the dispute in this case rages around the adequacy of the so-called warning and whether the communication of the warning to the employer insulates it from liability toward the injured employee.
In Lindenberg v. Folson, 138 N.W.2d 573 (N.D.1965), we quoted with approval Section 398 of Restatement of the Law, Torts 2d, as follows :
“A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.” 138 N.W.2d 573, at 582.
In the same case we held that
“ . .
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VOGEL, Judge.
The defendant, Symons Corporation (hereinafter manufacturer), has appealed from an order of the trial court denying its motion for judgment notwithstanding the verdict or in the alternative for a new trial, following entry of judgment based on a jury verdict in favor of the plaintiff in the amount of $25,033.90.
This is a products liability case in which the plaintiff, Robert Seibel (hereinafter employee), who was injured while working for Morrison-Knudsen & Associates (hereinafter employer), seeks recovery for injuries from the manufacturer, which manufactured steel concrete forms called “Sy-mons Superforms,” on which the employee was working when he fell and was injured as a result of the breaking of a weld on a V-shaped end-rail support rod to which he had attached the lanyard of his safety belt while he was in the process of assembling the steel concrete forms. The employee’s claim is based on express warranty, implied warranty of fitness, and negligence in design or manufacture. The defendant interposed several defenses, including assumption of risk, contributory negligence, that it had adequately warned the employee of the danger which caused his injury, and that the manufacturer was insulated from liability by reason of its issuance of a warning to the employer as to the danger.
Morrison-Knudsen is a large contractor. At the time of this industrial accident it was involved in building a Missile Site Radar (MSR) complex associated with the Anti-Ballistic Missile Site located in the area adjacent to Nekoma, North Dakota. The components of the Symons Superform System, with the aid of the technical manual supplied by the manufacturer to its vendee, Morrison-Knudsen, were to be assembled at the contract site by Morrison-Knudsen into what are called “gang sections.” These gang sections are then moved from place to place on the jobsite by cranes and trucks, and when placed in position the Symons Superform System acts as a mold for the placement of concrete to cast concrete walls. When the concrete has hardened, the forms are removed by crane and set into the next position for the casting of more concrete walls. The gang forms are disassembled and reassembled on the jobsite from time to time to accommodate different wall-forming requirements.
At the time of this industrial accident, two such gang sections had been set up facing each other to form the mold into which concrete would be poured to form a concrete wall of an elevator shaft. To complete the assembly it was necessary for Morrison-Knudsen’s workmen to put into [53]*53place ties to provide the necessary spreader action between the gangs in order to maintain accurate concrete wall thickness. This is accomplished by placing “she-bolt” ties through the gangs. One employee works on each side of the outer surface of the two facing gangs of Symons Superforms. The injured employee was working on one side of these gangs while in the process of inserting and securing a she-bolt tie. He had climbed some 16 or 18 feet above the bottom of the gang, where he attached his safety belt lanyard to one of the V-shaped end-rail support rods in order that he might have both hands free with which to work. The employee relied on his safety belt to keep him in a vertical position. While he was standing with his feet on one of the horizontal crossbars of the gang, the light weld at the end of the V-shaped end-rail support rod, around which he had placed the lanyard of his safety belt, gave way and the lanyard slipped off the end of the V-shaped rod causing him to fall approximately 16 or 18 feet onto a wooden platform below. His injuries were serious.
At the close of the plaintiff’s case and again at the close of the entire case, the manufacturer moved for a directed verdict on several grounds, one of which was that the evidence established that the manufacturer had given its vendee (the employer) adequate warning not to hang off V-shaped end-rail support rods. It argued that failure to pass on the warning to the employees was the fault of the employer and not the manufacturer, and that there could be no recovery from the manufacturer by the employee on the basis of the failure of the manufacturer-vendor to warn the vendee’s employee. The motion was resisted, and the trial court denied it. The action was submitted to the jury, and after entry of judgment the manufacturer moved to have the verdict and judgment set aside, and to have judgment entered in accordance with its motion for a directed verdict. It also moved in the alternative for a new trial, pursuant to Rule 50(b), N.D.R.Civ.P. Both motions were denied by the trial court.
When the manufacturer, as vendor of the Symons Superform, made delivery of the Superform to the employer at its job-site in a semi-disassembled state for assembly and use, it furnished the employer with several copies of a technical manual containing instructions for the assembly and use of the Symons Superform. The manual is a book about one inch thick, containing about 115 pages. The first three pages are a section headed “Introduction.” On page 3 of this section appears the following:
“E. SAFETY
“1. Horizontal crossmembers and the vertical rod facilitate easy, safe climbing and safety belt attachment. DO NOT HANG OFF V-SHAPED END RAIL SUPPORT RODS.
“2. All connections are bolted eliminating falling connecting hardware.”
The sentence “DO NOT HANG OFF V-SHAPED END RAIL SUPPORT RODS” is described to us by the manufacturer as the warning which it issued to the employer and the employee.
There is no evidence that the so-called warning was ever communicated to the employee. There is evidence that the manuals were received by the employer and were discussed at some meetings of its employees.
The location and appearance of the V-shaped end-rail support rods was such that the jury could find that using them for support was a reasonable use, in the absence of an adequate warning not to do so.
This action is against the manufacturer only. The negligence, if any, of the employer is relevant only if it is the sole proximate cause of the plaintiff’s injury. For the purpose of this appeal we may assume that the employer was negligent and [54]*54consider only the question of whether the manufacturer was also negligent.
Much of the dispute in this case rages around the adequacy of the so-called warning and whether the communication of the warning to the employer insulates it from liability toward the injured employee.
In Lindenberg v. Folson, 138 N.W.2d 573 (N.D.1965), we quoted with approval Section 398 of Restatement of the Law, Torts 2d, as follows :
“A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.” 138 N.W.2d 573, at 582.
In the same case we held that
“ . . .a manufacturer supplying a machine has a duty to exercise reasonable care to inform the user of any dangerous condition and character of the machine when put to the use for which it was manufactured and sold, where such danger is known or which reasonably should have been known by the manufacturer in the exercise of ordinary cgire.” 138 N.W.2d 573, at 582.
And we quoted from 76 A.L.R.2d 96 as follows :
“One who has been injured by a product may seek to hold the manufacturer or seller liable on the theory that the design of the product made it dangerous and, apart from whether it was negligence so to design it, negligence inhered in a failure to warn of the danger.” 138 N.W.2d 573, at 582.
The primary questions before us are whether the sentence quoted above from the technical manual constitutes an adequate warning of the danger which the jury found to be inherent in the foreseeable use of the product and whether the fact that the manufacturer communicated the sentence to the employer insulates the manufacturer from liability for the injury to the employee.
The trial court instructed the jury:
“A manufacturer of goods has a duty to use reasonable care in the design of, in the materials used in, in the assembly of, and to inspect the goods to protect those who will use the goods from unreasonable risk of harm while the goods are being used for their intended purpose and while the goods are being used for any purpose which could be reasonably expected. This duty extends to any person using the goods or in the area of its use whether or not the person using the goods was the actual purchaser.
“A manufacturer is not relieved of any duty he may have by the fact that 'he did not sell the article to the person using the article at the time such person was injured. The defect, however, must be one that existed at the time it left the control of the manufacturer.
“A manufacturer of goods has a duty to give a reasonable warning as to dangers inherent or reasonably foreseeable in using the goods in the manner specified. This duty applies even though the goods may not be used in their specified manner, so long as such use is one that the manufacturer should reasonably foresee.
“If a manufacturer of goods uses printed instructions to advise persons as to the proper use of the goods, he has a duty to use reasonable care to give accurate and adequate instructions with respect to such use and as to dangers inherent in using the article in an improper manner which the manufacturer should reasonably foresee.”
The final paragraph of this instruction, we believe, points out that what is generally described as a duty to warn is actually two duties: one is to give ade[55]*55quate instructions for safe use, and the other is to give a warning as to dangers inherent in improper use. The distinction is pointed out in Frumer and Friedman, Products Liability, Section 8.05:
“There is substantial authority that the manufacturer must give both adequate directions for use and adequate warning of potential danger. Directions and warnings serve different purposes. Directions are required to assure effective use, warning to assure safe use. It is clear from the better reasoned cases that directions for use, which merely tell how to use the product, and which do not say anything about the danger of foreseeable misuse, do not necessarily satisfy the duty to warn.” [Emphasis in original.]
In addition to the distinction between directions for use and warnings of danger, the duty to warn also involves the concept of the adequacy of any warning given, both as to clarity and completeness and as to the means used to communicate the warning to users and others within the zone of danger of injury or damage. These and other ramifications of the rules as to duty to warn and the adequacy of warnings are best stated in Restatement, Torts 2d, comment n to Section 388(c) [which is also applicable ü> Section 398, quoted above, if the manufacturer is also a seller or other supplier of the potentially dangerous instrumentality — see comment to Section 394 of Restatement 2d].
“n. Warnings given to ■ third person. Chattels are often supplied for the use of others, although the chattels or the permission to use them are not given directly to those for whose use they are supplied, as when a wholesale dealer sells to a retailer goods which are obviously to be used by the persons purchasing them from him, or when a contractor furnishes the scaffold-ings or other appliances which his subcontractor and the latter’s servants are to use, or when an automobile is lent for the borrower to use for the conveyance of his family and friends. In all such cases the question may arise as to whether the person supplying the chattel is exercising that reasonable care, which he owes to those who are to use it, by informing the third person through whom the chattel is supplied of its actual character.
“Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it. All sorts of chattels may be supplied for the use of others, through all sorts of third persons and under an infinite variety of circumstances. This being true, it is obviously impossible to state in advance any set of rules which will automatically determine in all cases whether one supplying a chattel for the use of others through a third person has satisfied his duty to those who are to use the chattel by informing the third person of the dangerous character of the chattel, or of the precautions which must be exercised in using it in order to make its use safe. There are, however, certain factors which are important in determining this question. There is necessarily some chance that information given to the third person will not be communicated by him to those who are to use the chattel. This chance varies with the circumstances existing at the time the chattel is turned over to the third person, or permission is given to him to allow others to use it. These circumstances include the known or knowable character of the third person and may also include the purpose for which the chattel is given. Modern life would be intolerable unless one were permitted to rely to a certain extent on others’ doing what they normally do, particularly if it is their duty to do so. If the chattel is one which if ignorantly used contains no great chance of causing anything more than some comparatively trivial harm, it is reasonable to per[56]*56mit the one who supplies the chattel through a third person to rely upon the fact that the third person is an ordinary normal man to whose discredit the supplier knows nothing, as a sufficient assurance that information given to him will be passed on to those who are to use the chattel.
“If, however, the third person is known to be careless or inconsiderate or if the purpose for which the chattel is to be used is to his advantage and knowledge of the true character of the chattel is likely to prevent its being used and so to deprive him of this advantage — as when goods so defective as to be unsalable are sold by a wholesaler to a retailer — the supplier of the chattel has reason to expect, or at least suspect, that the information will fail to reach those who are to use the chattel and whose safety depends upon their knowledge of its true character. In such a case, the supplier may well be required to go further than to- tell such a third person of the dangerous character of the article, or, if he fails to do so, to take the risk of being subjected to liability if the information is not brought home to those whom the supplier should expect to use the chattel. In many cases the burden of doing so is slight, as when the chattel is to be used in the presence or vicinity of the person supplying it, so that he could easily give a personal warning to those who are to use the chattel. Even though the supplier has no practicable opportunity to give this information directly and in person to those who are to use the chattel or share in its use, it is not unreasonable to require him to make good any harm which is caused by his using so unreliable a method of giving the information which is obviously necessary to make the chattel safe for those who use it and those in the vicinity of its use.
“Here, as in every case which involves the determination of the precautions which must be taken to satisfy the requirements of reasonable care, the magnitude of the risk involved must be compared with the burden which would be imposed by requiring them (see § 291), and the magnitude of the risk is determined not only by the chance that some harm may result but also the serious or trivial character of the harm which is likely to result (see § 293). Since the care which must be taken always increases with the danger involved, it may be reasonable to require those who supply through others chattels which if ignorantly used involve grave risk of serious harm to those who use them and those in the vicinity of their use, to take precautions to bring the information home to the users of such chattels which it would be unreasonable to demand were the chattels of a less dangerous character.
“Thus, while it may be proper to permit a supplier to assume that one through whom he supplies a chattel which is only slightly dangerous will communicate the information given him to those who are to use it unless he knows that the other is careless, it may be improper to permit him to trust the conveyance of the necessary information of the actual character of a highly dangerous article to a third person of whose character he knows nothing. It may well be that he should take the risk that this information may not be communicated, unless he exercises reasonable care to ascertain the character of the third person, or unless from previous experience with him or from the excellence of his reputation the supplier has positive reason to believe that he is careful. In addition to this, if the danger involved in the ignorant use of a particular chattel is very great, it may be that the supplier does not exercise reasonable care in entrusting the communication of the necessary information even to a person whom he has good reason to believe to be careful. Many such articles can be made to carry their own message to the understanding of those who are likely to use them by the form in which they are put out, by the container in which they are supplied, or by a label or other device, indicating with a substantial sufficiency their dangerous character. Where the danger involved in the ignorant use of their true [57]*57quality is great and such means of disclosure are practicable and not unduly burdensome, it may well be that the supplier should be required to adopt them. There are many statutes which require that articles which are highly dangerous if used in ignorance of their character, such as poisons, explosives, and inflammables, shall be put out in such a form as to bear on their face notice of their dangerous character, either by the additional coloring matter, the form or color of the containers, or by labels. Such statutes are customarily construed as making one who supplies such articles not so marked liable, even though he has disclosed their actual character to the person to whom he directly gives them for the use of others, and even though the statute contains no express provisions on the subject.”
Judged by the standards we have set forth, and taking into account the potential of severe injury or death from use of the V-shaped support rods, the fact that the so-called warning could more properly be described as an instruction for use, the fact that it was only one sentence in a thick book of limited distribution which never reached the employee, and the failure to use other means of warning (such as red paint, decals, and the like) and the failure to make a change to eliminate the risk (such as relocating the support rods or strengthening them), we believe the jury was justified in finding the manufacturer negligent in either the design or manufacture of the Superform, or in failing to give an adequate warning, or in failing to adequately communicate a warning to the employee who was the ultimate user.
The trial court’s instructions to the jury adequately cover these issues and are in conformity with Restatement and with our holdings in Lindenberg v. Folson, supra.
Of many similar cases illustrating the application of rules we have stated, we mention Johnson v. West Fargo Mfg. Co., 255 Minn. 19, 95 N.W.2d 497 (1959); Lovejoy v. Minneapolis-Moline Power Implement Co., 248 Minn. 319, 79 N.W.2d 688 (1956); and Hartmon v. National Heater Co., 240 Minn. 264, 60 N.W.2d 804 (1953). In those cases, instructions for use were given, but the warnings of danger were inadequate or absent. Another illustration is J. C. Lewis Motor Co. v. Williams, 85 Ga.App. 538, 69 S.E.2d 816 (1952), where liability was imposed although there was an instruction to use a pipe to deflect the gas fumes from a tractor, but the warning did not advise of the danger which would follow use without the deflector, due to inhalation of carbon monoxide contained in exhaust gas.
There is a line of cases holding that a warning communicated to an employer for communication to the employee may insulate the manufacturer from liability to the employee, where the employer fails to communicate the warning. Such cases include Weekes v. Michigan Chrome & Chemical Co., 352 F.2d 603 (CA6 1965); Younger v. Dow Corning Corp., 202 Kan. 674, 451 P.2d 177 (1969); Bertone v. Turco Products, 252 F.2d 726 (CA3 1958). However, such cases arise from factual situations where either the danger is slight or the difficulties of giving the warning are immense (as where toxic liquids are delivered in large quantities and used by many persons in small quantities), or where the warning was held to be adequate as a matter of law. Under the circumstances of this case, we hold that the determination of the adequacy of the warning is for the. jury.
As is stated in Frutner and Friedman, Products Liability, Section 803(3) :
“There is authority that adequate warning to the purchaser terminates the manufacturer’s liability. But other cases, representing a better and more modern view, hold the manufacturer liable for failure to adequately warn other persons who might be forseeably subjected to the danger.”
The manufacturer asserts that the court erred in withdrawing from the [58]*58jury the defenses of contributory negligence and assumption of risk. [This action was tried prior to adoption of the doctrine of comparative negligence, which eliminated the two defenses. See Wentz v. Deseth, 221 N.W.2d 101 (N.D.1974).] Even under the law in effect at the time of trial, the defenses of assumption of risk and contributory negligence were to be submitted to the jury only if there was evidence to support the theories. Wentz v. Deseth, supra. Here, while there was testimony that the plaintiff had been orally instructed to tie off on the vertical rod (as distinguished from the V-shaped rod), the court determined by interrogation of the plaintiff, clarifying prior unclear testimony, that the instructions came after the accident. There is nothing in the appearance of the V-shaped rod to indicate any danger in using it. In the absence of any warning, or obvious danger, we see no error in the withdrawal from the jury of the defenses of assumption of risk and contributory negligence.
The manufacturer argues further that the court, by withdrawing the two defenses mentioned, and by giving the instructions as to the duty of the manufacturer quoted above, in effect instructed that strict liability in tort is the law of North Dakota, and that this was error. To this there are two answers. The first is that the instructions quoted are not equivalent to an instruction on strict liability in tort, since the instructions given contain the element of negligence in manufacture and negligence in warning as alternative prerequisites to recovery, while strict liability in tort (see Section 402A, Restatement, Torts 2d) permits recovery without negligence if the design, manufacture, or instructions for use present an unreasonable risk. The second answer is that we have not held that strict liability in tort is not the law in North Dakota. We have not yet been presented with a case where that question is at issue. See Haugen v. Ford Motor Co., 219 N.W.2d 462 (N.D.1974). Certain of our prior cases have held that some parts of the doctrine of strict liability in tort are the law of this State — for example, elimination of the requirement of privity in Lang v. General Motors Corp., 136 N.W.2d 805 (N.D.1965), which quotes and cites extensively from strict liability cases in other jurisdictions.
The manufacturer complains next of the refusal of a requested instruction to the effect that a manufacturer is not liable for changes in the product after it leaves his control. The matter was adequately covered in the second paragraph of the instruction quoted above. Other allegations of error in the refusal of requested instructions are likewise without merit. Several of them incorrectly assume that the court was instructing on the doctrine of strict liability in tort. Another states that it was error to refuse instructions as to contributory negligence in following the manufacturer’s instructions. However, as we have stated, there is no showing that the instructions reached the employee, so it was not error to refuse to give the requested instructions.
Another requested instruction asserted that the employee assumed any risk involved in working in high places. This is true, but he did not assume the risk of an unexpected failure of a welded joint which he had no reason to believe would not hold his weight. There was no error in refusing to give this requested instruction.
Finally, the manufacturer alleges that the amount of the verdict indicates that the jury gave excessive damages under influence of passion and prejudice, but the manufacturer gives no basis for this assertion except the amount of the verdict. The amount of damages is a matter peculiarly within the province of the jury, and we upset a jury’s determination only in rare and exceptional cases. See Skjonsby v. Ness, 221 N.W.2d 70 (N.D.1974). Here, the plaintiff fell 16 to 18 feet and landed on his head, which was [59]*59partially protected by a hard hat. In addition to a concussion and abrasions and the like, he had injuries to his neck which a physician estimated caused a 10 per cent permanent partial disability. His special damages were about $5,500, and his life expectancy is 47.2 years. We decline to hold that a verdict of $25,033.90 is excessive.
The manufacturer also asserts that the amount of the verdict shows that the verdict was unlawfully arrived at, presumably because the fact that the verdict is not in round numbers indicates that the jury improperly arrived at a quotient verdict. No proof of this assertion is offered. The mere allegation of a quotient verdict is not enough to justify a new trial. The use of a quotient verdict is one matter in which affidavits of jurors may be used. Rule 59(b)(2), N.D.R.Civ.P. None is offered here.
Furthermore, not all quotient verdicts are grounds for reversal. Only those quotient verdicts which are arrived at pursuant to a prior agreement to be bound by the result of the computation are defective. Great Northern Ry. Co. v. Lenton, 31 N.D. 555, 154 N.W. 275 (1915). There is no indication of such a prior agreement here.
We find no error, and the order denying motion for judgment notwithstanding the verdict and alternative motion for new trial is affirmed.
ERICKSTAD, C. J., and KNUDSON and PAULSON, JJ., concur.