The defendants have petitioned for a rehearing. The first contention advanced in the petition is that "the Court failed to rule on the question of whether or not the plaintiff was bound by the same standards of care as were the defendants." The question of standard of care is involved in every negligence case but it is not always a controverted question presented to the court for determination. Indeed the reported cases show that in a great majority of negligence cases the question of standard of care was not discussed or determined. We must admit that it did not occur to us that in this case any question was presented requiring a determination by this court of what constituted the standard for measuring the conduct of the parties.
At the very outset of the argument in appellants' brief it is stated: "This is a negligence case. It is, of course, a fundamental rule that the conduct of the plaintiffs and defendants is measured by the same standard — the standard of the reasonable man. This universal rule was recognized by the trial court in its instructions." Following this statement are certain quotations from Judge Cardozo's "Paradoxes of Legal Science" and from Judge Holmes' "The Common Law" to the same effect as the statement in appellants' brief. At the beginning of the argument in respondent's brief it is said: "We have no particular quarrel with the quotations set forth at page 13 of appellants' brief but such statements must be considered in the light of the rule that negligence is always a relative or comparative term as is also the rule pertaining to ordinary care." The court, among others, gave the following instructions to the jury:
"Ordinary care, as used in these instructions, means that degree of care which a person of ordinary prudence would exercise under the same or similar circumstances, in the same or similar transactions or affairs of life."
"By negligence is meant the failure to exercise ordinary care, as the term `ordinary care' has been defined above. *Page 681
"The standard of conduct required by the law of the plaintiff and the defendants is exactly the same. There cannot be one rule for the defendants and a different rule for the plaintiff."
No exception was taken to any of these instructions by either the plaintiff or the defendants. These instructions, of course, constitute the law of the case.
"Negligence is a relative term and depends upon the degree of care necessary in a given case." I Shearman Redfield on Negligence, Revised Edition, p. 6. See Halverson v. Zimmerman,60 N.D. 113, 232 N.W. 754; Gallagher v. Great Northern R. Co. 55 N.D. 211,212 N.W. 839; Rice v. Portland, 141 Or. 205, 17 P.2d 562; Ehret v. Scarsdale, 269 N.Y. 198, 199 N.E. 56, 102 A.L.R. 211.
"Negligence is the failure to exercise the degree of care demanded by the circumstances." Gallagher v. Great Northern R. Co. supra.
"It is not what one does, considered of itself and apart from all other considerations, which is to be judged in determining whether there has been an exercise of ordinary care. It is to what he does as related to the circumstances under which he acts that the test is to be applied." I Shearman Redfield on Negligence, Rev ed p 8.
"The standard by which the conduct of a person in a particular situation is judged in determining whether he was negligent is the care which an ordinarily prudent person would exercise under like circumstances. As has been said, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Concisely stated, the test of due care is the supposititious course of an ordinarily prudent and careful person under the same circumstances." 38 Am Jur 676, Negligence § 30.
"Ordinary care is such as an ordinarily prudent person would exercise under similar circumstances. That standard of care is unvarying, but the degree of care varies with the circumstances." I Shearman Redfield on Negligence, Rev ed, p 6. *Page 682
The relation and the situation of the parties, the nature, characteristics and condition of the instrumentality or property in connection with the use or control of which negligence is charged, the locality in which a particular act is done or omitted are matters for consideration in determining whether ordinary care has been exercised. 45 CJ pp 694-696.
"The amount or degree of diligence and caution which is necessary to constitute due, reasonable, or ordinary care changes with changing conditions, and varies according to the exigencies which require vigilance and attention, so that the same conduct may, under one set of circumstances or in particular surroundings, constitute sufficient care, and under other circumstances or in other surroundings, be negligent or even amount to gross negligence or wantonness. Indeed, so great is the effect of circumstances that the same conduct, under different circumstances or in different situations, may range from the highest degree of care to gross negligence." 45 CJ pp 693-694.
In Grand Trunk R. Co. v. Ives, 144 U.S. 408, 417, 36 L ed 485,489, 12 S. Ct. 679, the Supreme Court of the United States said:
"There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms `ordinary care,' `reasonable prudence,' and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion *Page 683 from them, that the question of negligence is ever considered as one of law for the court."
In Gallagher v. Great Northern R. Co. 55 N.D. 211, 212 N.W. 839, supra, this Court said:
"The term `negligence' is relative and its application depends on the situation of the parties and the degree of care and vigilance which the circumstances reasonably impose. . . .
"Ordinarily negligence and contributory negligence are questions for the jury. They become questions of law only where the material facts are established by undisputed evidence and the inference from the facts is so certain that all reasonable men in the exercise of a fair and impartial judgment can arrive at only one conclusion. 20 R.C.L. pp. 169-171. In other words, in an action to recover damages for personal injuries the questions whether the defendant has been guilty of negligence and whether the defendant has been guilty of contributory negligence are for the determination of the jury, `Not only where there is room for difference of opinion between reasonable men as to the existence of the facts — from which it is proposed to infer negligence, but also where there is room for such a difference as to the inferences which might be fairly drawn from conceded facts.' Shearm. Redf. Neg. 6th ed. Sec. 54; ."
The standard by which the conduct of the defendants is to be judged in determining whether they were guilty of negligence is the conduct of ordinarily prudent persons under like or similar circumstances, conditions or surroundings, and the standard by which the conduct of the plaintiff is to be judged in determining whether she was guilty of contributory negligence is the conduct of an ordinarily prudent person under like or similar circumstances, conditions or surroundings. 38 Am Jur §§ 29-30, pp 673-677, § 190, pp 866-867; Walsh v. Chicago R. Co. 303 Ill. 339,135 N.E. 709.
We have again reviewed the evidence in this case and adhere to the views expressed and the conclusions reached in the former opinion. We are agreed that the facts and circumstances in this case are not such that intelligent, reasonable and fair-minded persons could reach only the conclusion that the action of the defendants in placing the boards where they were placed *Page 684 constituted ordinary care, and that such persons could reach only the conclusion that the acts of the defendants in so placing the boards did not constitute the proximate cause of the injuries sustained by the plaintiff. On the contrary we believe that intelligent, reasonable and fair-minded persons in the exercise of reason and judgment might well reach the conclusion that the defendants in placing the boards as and where they were placed failed to exercise ordinary care and were guilty of actionable negligence and that such negligent acts constituted the proximate cause of the injuries sustained by the plaintiff. We are also agreed that intelligent, reasonable and fair-minded persons in the exercise of reason and judgment after considering and weighing the evidence might well reach the conclusion that the plaintiff had not assumed the risk of the injuries which she sustained and that an ordinarily prudent person under like or similar circumstances, conditions and surroundings might well have acted as the plaintiff did. In short, we are of the mind that under the facts and circumstances of this case negligence, contributory negligence and assumption of risk were questions for the jury.
The next contention advanced in the petition for rehearing is directed at the part of the former opinion relating to the decision of this court in Torgerson v. Minneapolis, St. Paul Sault Ste. Marie R. Co. 49 N.D. 1096, 194 N.W. 741. As was said in the former opinion appellants cited the decision of this court in the Torgerson case in support of their contention that there was no evidence showing actual negligence on the part of the defendants and that the evidence establishes that the plaintiff assumed the risk and that her injuries were caused by her own negligence. Indeed it was asserted that from what was said in the decision in the Torgerson case "It would seem that this court is already committed to the proposition that under the facts in the instant case there can be no recovery." In the former opinion in this case we said that "the facts in the Torgerson case were quite different from the facts and circumstances in this case." It is asked "How were they different?" And it is said, "that the only difference counsel can see is that in the Torgerson case you had involved an employer-employee relation and *Page 685 in this lawsuit you do not." We have carefully considered the contention advanced by appellants and are still of the mind that the facts in the Torgerson case "were quite different from the facts and circumstances in this case," — different to such extent that the decision in the Torgerson case does not have any controlling effect in this case.
"It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used." Cohen v. Virginia (US) 6 Wheat 264, 399, 5 L ed 257, 290.
"It is a general rule," said Chief Justice Marshall (Ogden v. Saunders (US) 12 Wheat 333, 6 L ed 647), . . . "that the positive authority of a decision is co-extensive only with the facts on which it is made."
As is pointed out in the former opinion, the Torgerson case came before this court on an appeal from an order sustaining a demurrer to the complaint and naturally the question of contributory negligence was not involved. The Torgerson Case involved a situation where the plaintiff was an employee who had been employed by the defendant railway company for more than three years. He was directed by the foreman of the crew to unload a box car containing grain doors. The doors were in three piles, — one in the center of the car and one at each side of the center pile. He first removed the center pile and thereafter doors from the other piles fell upon and injured him.
The plaintiff in his complaint predicated his right of action upon: —
"First, the negligent failure on the part of the defendant to furnish a reasonably safe place in which to work, and secondly, a negligent failure on the defendant's part to instruct plaintiff had to proceed to unload the doors and to warn plaintiff of the danger that the remaining pile or piles of doors might shift and topple over upon plaintiff, when the central pile was removed." (49 N.D. 1102-1103, 194 N.W. 743).
The court considered the propositions in the order stated. In disposing of the first proposition the court said:
"Plaintiff alleges `that an inspection of the place where he was ordered to work would not reveal the imminent danger he *Page 686 had been exposed to.' Taking this allegation as true, `the imminent danger' to plaintiff must have resulted from the prosecution of the work he was engaged to do — the manner of the removal of the grain doors from the car. The premises, including the car and the piles of doors, were not, in themselves, dangerous, or unsafe; the danger or risk came into existence only, if at all, after the work of unloading commenced and by reason of the actual prosecution of the work, of changing conditions and of the manner in which the work was done. We think that the rule that the master must furnish the servant a reasonably safe place to work has no application in this case." (49 N.D. 1103, 194 N.W. 743).
The rule thus applied by this court is recognized quite generally, and is said to be an exception to the rule requiring the employer to make safe the place where his employees are at work. 35 Am Jur 615, Master and Servant § 187; 18 RCL p 595; Anno 28 LRA NS 1267.
The court next considered the second ground on which plaintiff's cause of action was predicated. In disposing of this proposition the court said in part:
"Did the defendant owe a duty to the plaintiff to instruct him how to proceed to unload the doors and to warn him of the risk and danger that the pile of doors on either side of the central pile might topple over when the latter was removed? It seems to be fundamental that the duty to warn exists only when the master possesses knowledge of risks or dangers, or should, in the exercise of ordinary care for the servant's safety, have such knowledge, not within the knowledge of the servant, or discernible by the latter in the exercise of ordinary care. . . . The master was not, under the facts alleged, required to assume or anticipate that the servant would ignore natural laws, adopt a method of work manifestly dangerous, or one which a person of his age and experience, in the exercise of ordinary care, must have known to be dangerous under the circumstances. There can be no liability for failure to anticipate danger to a servant and to warn him thereof, unless the master's knowledge of the danger, or opportunity to have knowledge thereof, having in mind the master's primary duty to make inquiry, *Page 687 is superior to that of the servant. (Citation of authority). The master here had no reason to anticipate that the servant would remove the central pile and leave one pile on each side standing with consequent danger to himself from the falling of one or both of them. (Citation of authority). It would seem reasonable to suggest that, if it cannot be held negligent on the part of the plaintiff to unload the doors in such a way as to leave a pile or piles standing in such a position as to be manifestly dangerous to himself, it cannot be deemed negligence on the part of the defendant to fail to anticipate that he would do this very thing and to omit to warn plaintiff against unloading the doors in this particular way. Such risk as there was lay entirely in the method of work adopted by plaintiff. (Citation of authority). Whatever danger inhered in the method adopted was clearly discernible to a man of ordinary intelligence and experience. . . . We are constrained to hold that, in the exercise of common observation, any man of ordinary intelligence would understand the situation entirely and appreciate the risk to his person involved in removing the central pile of doors from the car while leaving a pile on each side standing. No warning could have made the danger plainer; the probability that the doors might fall could not be better known or understood by the employer than by the employee; it was obvious to any person having knowledge of elementary natural laws, presumed a common possession of the mass of mankind. It seems clear, therefore, that the master was not negligent in failing to warn the servant. (Citation of authority).
"There is no allegation that the doors were negligently piled in the car; or that they were piled in an unusual manner, or that plaintiff never unloaded grain doors before and did not know the proper manner of unloading them. There is no allegation in the complaint from which it can be inferred that the defendant knew or should have known that plaintiff would first remove the central pile, leaving the others a standing menace to himself, or that it was at fault in permitting the risk to exist that one pile of doors might fall when another was removed, or that such risk resulted from any negligent act or omission *Page 688 on its part. There is no allegation that defendant knew that plaintiff had no experience in unloading grain doors. In other words, the risk that the doors might slide or topple down, under the circumstances, was an ordinary risk, understood by plaintiff, incidental to the employment and the method of unloading adopted by plaintiff and was, therefore, assumed by him. (Citation of authority). The risk having been ordinary and such as to be observable and appreciated by a person in the use of ordinary observation and of ordinary intelligence, the presumption being that plaintiff was in the possession of ordinary and unimpaired faculties of observation, there was no duty to warn or instruct the servant."
We think the facts in this case readily distinguish it from the Torgerson case. The relation and position of the parties and the situation and circumstances of the accidents were quite different. In the Torgerson Case the plaintiff had been an employee of the defendant for some three years. In the course of his employment he was directed to unload a box car containing grain doors. He entered upon the work. He handled the doors. He removed and unloaded the entire center pile. The plaintiff in this case was not an employee of the defendants, she was a tenant who had rented certain premises from them. She had not handled the boards and knew nothing about them except that she had seen them in the hallway. In the course of the preparation of her evening meal she went to the cupboard to obtain some canned fruit which she kept there. She found that the boards had been placed against the cupboard so that it was impossible to open the cupboard door unless the boards themselves or the tops were moved sufficiently to enable her to open the door. There was no warning or anything to indicate that the boards were of such character or that they had been so placed that there was any danger that any injury might result from an attempt to move them. She assumed from the appearance of the boards that they were made of light weight material and it occurred to her that she might be able to move the tops of the boards away from the cupboard door sufficiently to enable her to open the door of the cupboard and obtain the food which she sought. She grasped the boards firmly and found that they *Page 689 moved easily and proceeded to try to move the tops of the boards to enable her to obtain entrance to the cupboard. She was required to exercise ordinary care for her own protection against injury but she was not bound to anticipate negligent acts or omissions on the part of the defendants. 45 CJ § 512, pp 954-956; 38 Am Jur 871, Negligence § 192. We repeat what we said in the former opinion: "She could hardly assume that the defendants intended to bar her from entrance to the cupboard or that they had left boards there of a type which would be dangerous for her to attempt to move or which she would be unable to move sufficiently to enable her to open the cupboard doors without obtaining the assistance of others."
As stated in the former opinion the Torgerson case was again brought before this court on appeal from an order overruling a general demurrer to the amended complaint. In the amended complaint the cause of action was bottomed solely upon the alleged negligence of the defendant in failing to warn the plaintiff of the danger of the work. The complaint alleged certain matters not stated in the former complaint, among others, that the plaintiff at the time when he was employed by the defendant and at all times when he had worked for the defendant "suffered from defective eyesight and defective hearing, which defects greatly impaired his mental abilities and activities and on account of such defects was unable to recognize any dangerous condition"; that defendant knew of plaintiff's defective condition and at times had to warn him of danger, and "knew that plaintiff was not in a mental and physical condition such that it was safe to let him continue in its employment as a section hand"; that the section foreman was outside the car taking the doors from the plaintiff as the plaintiff handed them out to him; that the section foreman had a more favorable position to observe the condition of the grain doors and was better able both physically and mentally to judge the danger to the plaintiff than was the plaintiff, and that he owed a duty to warn plaintiff of the danger. This court held that the amended complaint did state a cause of action. Torgerson v. Minneapolis, St. Paul Sault Ste. Marie R. Co. 51 N.D. 745, 200 N.W. 1013. *Page 690
It is next contended that "the Court erred in holding that the boards the plaintiff thought were against her locker would have weighed less than 50 pounds." It is stated that it is assumed that "what the Court is doing here is to take judicial notice of the weight of these imaginary boards, their general use, and their effect on the plaintiff." This statement is leveled at that part of the following sentence in the former opinion which we have italicized: "There is no evidence as to what wall boards constructed wholly of fiber, of the type which plaintiff judging by their appearance assumed the boards to be, would weigh, but itis not denied that such boards would be much lighter than theplaster boards or sheet rock which the defendants placed in frontof the cupboard." On her direct examination the plaintiff testified that when she came to the cupboard for the purpose of obtaining food she had stored there, she found the boards in front of and leaning against the locker. She next testified:
"Q. What did you think they were?
A. I thought they were some kind of light weight material. I thought perhaps it was pressed paper or plyboard."
On her cross examination she testified:
"Q. I think that you testified on direct examination that your impression was as you looked the boards over that they were made of paper?
A. Very light weight boards. I didn't think very much about what they were made out of, something like plyboard.
Q. You thought they were plyboard, and that they were light in weight?
A. Something along that nature. I didn't know what they were."
She further testified that the boards were wrapped in paper and that she did not try to lift any of the packages. There was no objection to any of this testimony by any of the parties, either to that produced on direct examination or on the cross examination. The cross examination then proceeded as follows:
"Q. If you had lifted one package of two boards and then *Page 691 determined that the boards were too heavy for you, would you still have pulled them out from the side of the wall?
Plaintiff's Attorney: We object to that as calling for a speculative and conclusive answer, and improper cross-examination, constituting a so-called "iffy" question, improper cross examination.
The Court: The form of the question is that, but he is testing her ability to recognize the material handled. I think the objection will be overruled.
A. I didn't — I never thought of them being too heavy. Defendant's Attorney: Q. I am asking what you would have done if you had tried to lift them and found that they were too heavy for you to handle. Would you under those circumstances, having that knowledge, still have tried to pull the boards out from the side of the wall?
Plaintiff's Attorney: Same objection, incompetent, irrelevant and immaterial added to the objection.
The Court: Objection overruled. She may answer.
Plaintiff's Attorney: Answer if you can.
A. If I had taken one board, you say and found it too heavy? Defendant's Attorney: Q. Yes.
A. Well, no, of course not.
Q. You would not have tried to pull them out at all then?
A. No."
The defendant, William Fortune, Sr., having been examined prior to the trial, in response to questions propounded by plaintiff's counsel, testified as follows: —
"Q. And do you know how much they (the plaster boards) weighed per package?
A. Well, they were not very heavy. I imagine John must have got the weight from some place. I have seen a lot of people handle them is the only reason —
Q. Just give us the weight, if you know.
A. I would say about 25 pounds a piece, 50 pounds to the package."
Upon the trial the plaintiff called the manager of the lumber company from whom the defendants had purchased the plaster *Page 692 boards which fell upon and injured the plaintiff. He testified that a package of two plaster boards weighed 100.8 pounds; that the boards were made up of plaster filling with paper on both sides; that they were wrapped two boards in a package, the wrapping paper being red or brownish; that the inside of the boards consisted of plaster and that the boards were known as sheet rock or plaster board. On cross examination of the manager of the lumber company defendant's counsel asked the following question to which the manager gave the following answer:
"Q. These plaster boards are getting to be quite an ordinary method of construction now days?
A. Yes, they are."
It will be noted that on cross examination of the plaintiff defendant's counsel referred to the testimony she had given on direct examination that she thought the boards were some kind of light weight material, — perhaps pressed paper or plyboard. He then said "I think you testified on direct examination that your impression was as you looked the boards over that they were made of paper?", to which plaintiff replied, "Very light weight boards. I didn't think very much about what they were made out of, something like plyboard." Defendant's counsel then asked: — Q. "You thought they were plyboard, and that they were light in weight?" Plaintiff answered: — A. "Something along that nature. I didn't know what they were."
Thereupon the cross examination proceeded and the plaintiff was asked what she would have done if she had tried to lift the boards and found that they were too heavy for her to handle. Apparently the purpose of this examination was to show that if the plaintiff had attempted to lift the plaster boards and thus ascertained how heavy they were she would not have attempted to move them. On the argument in this court much stress was laid on the fact that the plaintiff had not lifted or attempted to lift any of the boards before she attempted to move them and it was contended that she was guilty of contributory negligence in attempting to move them without having first attempted to lift them and thus ascertained their weight. The evidence as to the composition of the plaster boards indicates that the boards *Page 693 would be of considerable weight and heavier than wall boards made of light material such as the plaintiff stated she assumed the boards to be. We did not "take judicial notice of the weight of these imaginary boards, their use and their effect upon the plaintiff." Indeed we did not know that the boards to which plaintiff referred were a figment of her imagination. There was no claim upon the trial to that effect or that wall boards of the type which plaintiff stated she thought these to be did not exist. There was no objection to the testimony or motion to strike it and there was no request for instruction that there was no proof that there were any wall boards of light weight such as the plaintiff testified she assumed the boards which she found in front of her locker to be. We did take notice of the testimony that was given and the reasonable inferences to be drawn from such testimony and we think it is true, as was said in the former opinion, "There is no evidence as to what wall boards constructed wholly of fiber, of the type which plaintiff judging by the appearance assumed the boards to be, would weigh, but it is not denied that such boards would be much lighter than the plaster boards or sheet rock which the defendants placed in front of the cupboard." Of course, an affirmance of the judgment is not dependent upon this statement. If it were stricken from the opinion, the result reached in the former opinion would remain the same.
A rehearing is denied.
NUESSLE, Ch. J., and MORRIS and BURKE, JJ., and GRONNA, District J., concur.
BURR, J., did not participate. *Page 694