
    KAMP, Respondent, v. WARREN-LAMB LUMBER COMPANY, Appellant.
    (168 N. W. 169).
    (File No. 4266.
    Opinion filed June 25, 1918.)
    1. Trials — Error—Issues-—Directing Verdict, Conflicting Evidence, Inferences.
    Where the evidence presents an issue, of fact, a motion for directed verdict is properly denied; since u-pon such motion every conflict in evidence, and every inference a jury might draw therefrom, should be resolved in favor of the opposite party.
    S?. Negligence — Lumber Mill Cart . Driver — Injury Erom Falling Lumber — Obstacle on Tramway — Violation of Instructions— Loads as Appliances — Negligence of Mill, Company, of Employee, of Fellow-Servant — Question for Jury. • Plaintiff, for ten days prior to his injury was employed by defendant mill company, to drive a lumber cart over certain tramways, and .to unload therefrom various brands of lumber at . corresponding tramways which slightly inclined downward from the mill to storage yards, the loading being done only by .plaintiff’s fellow-servants, who were instructed to load the lumber on the carts, each sort in a perpendicular pile in such order that each sort could be -unloaded at the proper place as the cart, proceeded. down the tram;'the lumber in question however having been improperly loaded with planlcs on top belonging at the most distant tram, to which point plaintiff drove to unload them. On returning up the tram with the balance of the load, which was being hauled by a burro, plaintiff 'being on top' holding the load together with his knees, the cart came in contact with a jog caused by beveled edges of double flooring on that part of the tram above the j.og. In attempting with the aid of another driver, to assist the burro in hauling the load over the jog, the assistant in lifting on a wheel, gave the cart a jerk, some of the lumber thereupon falling upon and injuring plaintiff; the load not having been- well piled, and having jarred, loose as it first came upon the tram; it appearing that plaintiff -did not stop at other trams on the way down to unload lumber, ¡b.ecause the planks on top belonged at the farther tram. Held, that under the evidence a jury might have inferred that plaintiff was not knowingly violating his instructions when he Went first to the farther tram to unload the top planks; that the loaded carts were the appliances furnished drivers and with which they, were required to perform their duties; that the mill company represented by the lumber loaders, was responsible for any negligence in manner of loading the carts, of which drivers were ignorant; that whether defendant company was negligent in this respect was a question for jury; that the improper loading of said cart indicated that the cart should first stop at the- farther tram to begin unloading. Held, further that whether plaintiff was proceeding properly in discharge of his duties was a Question of fact for jury, as also the question whether he was at fault or otherwise when he reached the jog and found that the burro was' unable to handle the load; that if hei was not at fault; it was his duty to adopt reasonable means such as seemed necessary to overcome the difficulty ^ which duty he apparently attempted to perform; that whether his injury resulted from his own • negligence or of his fellow-servant driver, or was due to improper loading of the cart, were questions for jury.
    ■Appeal' from Circuit Court, Pennington.,County. Hon. Levi McGee, Judge. , < - - ■ , -
    
      Action 'by Ernest Ramp, a minor, by. W. H. Tompkins, his guardian ad litem, against the Warren-Lamb Lumber Company, to recover damages- for persiohal injury. From a judgment for plaintiff, and from an order -overruling defendant’s motion for a directed verdict, it appeals.
    Affirmed.
    
      Buell & Demi, for Appellant.
    
      Frank D. Bangs, for Respondent.
    (1) To point one of the opinion, Appellant -cited:
    Lee v. Great Northern. Railway Co. (■&. D.) 163 N. W. 560; Butler v. Kilpatrick, (S. D-.) 162 N. W. 371; Glinksdale v. Wis. Granite Co. ('S. D.) 160 N. W. 843'; Beleiali v. Northern Pacific Railway Company, (N. D.)- 108 N. W. 33.
   SMITH, J.

Action for damages .for personal injuries. Verdict and' judgment for plaintiff. Appeal is from ithe judgment and an order overruling appellant’s motion -for 'a directed verdiict. This ruling alone is .assigned as error. The only question, involved ■is whether there was an issue of fact decisive of the right to recover dia-mages, which should have been submitted to' the jury. Appellant contends, in effect: First, that the evidence is insufficient to present any issue as to negligence on the part of the defendant ; second, that the evidence -conclusively shows that ptointiff’s injuries were -occasioned by his own negligence.; third, that the evidence conclusively shows that his injuries were the result of the’ act of a fellow servant for which appellant cannot be held responsible. If there was evidence presenting -issues -of fact upon either of these questions the trial court did not err in, overruling appellant’s moition for a directed verdict. Upon, such motion every conflict in the evidence, and every inference which a jury might draiw from' the evidence, should be resolved in respondent’s, favor.

The defendhnt is a -corporation engaged in the business of sawing lumber in Rapid City, and employs- a -large number -of mien, The storage yards are connected with the -mill by a system) of elevated tramways, consisting of a main tramway with 'branches. The branch trams are numbered', except -one which is farthest froto the mill and is called the Black Hawk tram. The tramways are so constructed that they incline slightly diownwiardi -from the mill, from the point where ithe lumber is loaded ¡when, being 'removed from the mill to the storage yard's, gravity thus assisting in moving the lo'aded carts. The lumber comes from the saws to a table -of' chains, where it is sorted' and loaded onto thr-ee-wheel carts which are drawn by horses, mules, or ¡Burros: Each 'hoard is -marked so as to indicate its grade and! 'destination. The lumber is- loaded onto the carts in tiers or perpendicular piles-, according to -its- grade. From 70 to 75 planks may be loaded onto- -a oart, the -weight of the load being 2,000 to 2,500 -pounds. The -drivers- are instructed to move the largest loads first. The 'diriver -takes- his load -down the main tramway until he reaches the first -branch tram at which hi-s load -or some part of it 'belongs, and- th'en'ce past each tram called for by his load, until- he reaches the farthest, or Black Hawk tram, which is the place at which lumber not -left at the preceding tram-s is unloaded. There was a -double flooring down the main tram to the Black Hawk tram1, and on -down that tram- about halfway to where two-inch -single flooring began. At that point -the t-wo-inich plank on top wte beveled do'wn toward- the -single-floor planks, leaving a jog or drop of an -inch or an inch and- a half. No trouble appears to have resulted from- passing b-ver this j-og -with ■loads when going down the tram, -according to the method -of unloading contemplated in the -construction- of the tram- system. The tram carts were -of -standard construction, were o-f the kind generally used -in sawmills, 'and were used without -chains or standards to secure 'the loads, which- -was the method-in general use.

Respondent, a boy 17 years of age, began work for the company on September 5, 1916, and containued' until October 2d, when ■he was injured. At that time he had been engaged far about ten d-ays in hauling lumber -on -one, of the carts drawn iby a burro-. On the -morning -of the accident he had hauled! two load's of lumber, tie tao-k the third load- ¡and drove past all the side trams and down to the Black Hawk tram1, 'and' dawn that tram until he had passed the jo-g caused by the double flooring above referred to, where he unloaded -four planks which belonged there and -which were- on top of the load and so placed as to bind -the load- together. After un ■ loading these planks he got Iota top- of the load, turned round, and proceeded back up the tram', holding the load together with his knee’s. When he reached -the jog in the floor, the bu’rro- w'as unable to pull the load up the beveled incline. He got do-w-n from- -the load, put the driving lines- on top, and, with the assistance of another -driver, -named Miller, attempted- to put the load up- over the jog. He took hold1 of one -wheel of die cart anid: Miller the other. In his testimony, he says:

“He (Miller) says, ‘Roll i-t hack,’ and be gave it a jerk .and it (the lumber) fell on me. I think the quick jerk was the cause of it.”

'Miller, his witness, testified:

“I guess' I whs a l'ittle bit stronger, and threw -the wheel ahead, and the lumber rolled off.”

Respondent also testified in substance, that he did not stop' at the other trams on the -way down to unload any of 'the lumber, for the reason that the four planks on top of die load .belonged at the Black Hawk tram, and he drove down there to unload them. It appears, from the evidence that the loaders were instructed to place the lumber on the carts, each sort in a perpendicular pile, in such order that each sort c-o-uld be unloaded lat the proper place as1 the cart proceeded down the tram-. It seems clear that this was not done in this- instance, andl ¡that a jury could properly have drawn the inference that respondent was not knowingly violating his instructions when he went first to the Black Hawk tram, to unload the planks on top. which belonged1 there. One Coyle -was lumber yard foreman, and was the person to whom respondent made application for employment, and who hired him to- work in the yards. The work in the yards was -under his supervision. The drivers had nothing whatever to do with loading the carts. The manner of the loading was -under Coyle’s supervision. The loaded carts were the appliances, in -a sense the tools, furnished the drivers with which they were required to' perform their duties- The company itself, represented -by 'Coyle, was responsible -for any negligence in the manner of loading the carts, of which the drivers1 -were ignorant. Solleim v. Norbeck & Nicholson Co., 34 S. D. 79, 147 N. W. 266.

Whether or not appellant was negligent in this respect Was a question of fact for die jury. It appeal's from the evidence that Coyle was. doing two men’s w'orlc, that of supervising the loading and the hauling and1 piling of ¡both, green and'¡dried lumber, and that -planks which should have been placed for unloading last, at the Black Hawk tram, were placed 00 top of the load, indicating that tram, as ¡the one at which the driver should) first stop and begin unloading; and the witness 'Coyle himself testified that this particular load was not well (piled, and that, after it struck the tram, it jarred! l'oose. It 'was1 the 'duty of the company to see to- it that the cants Were loaded in such proper -mannier as nlot to increase the hazard of tire driver in- the performance of 'his duties, and for negligence 'in this respect the company would be liable.

Whether, under all tire evidence, respondent was proceeding properly in the discharge of his duties was a question of fact for the jury, and whether respondent was at fault or was in the proper ■discharge of Ms duties when he reached the jbg in the Black Bowk tram and found that the burro was unable to 'handle the load was likewise a question of fact for the jury. If he was not at fault, it became his duty to-adopt 'reasonable means such as seemed necessary to overcome the difficulty. This he apparently attempted to do, and whether Ms injury wais the result of his own negligent aot or that of his fellow servia,nt Miller, or was1 due to improper loading of the cart, were proper questions of fact for the jury. The trial court did not err in 'overruling appellant’s motion for a directed verdict.

We find' it lunnecess'ary to consider other questions presented.

The order and1 judgment of the trial court are affirmed1.  