dissenting.
I desire to respectfully dissent from the conclusion arrived at by the Court in its majority opinion. While it is no doubt true as an abstract statement of law that “Notwithstanding some rulings in a few cases to the contrary, the great weight of authority is to the effect that a small portable stepladder is a simple tool or appliance” and it is also true that: “Where a tool or appliance is simple in construction and a defect therein is discernible without special skill or knowledge and the employee *390is as well qualified as the employer to detect the defect and appraise the danger resulting therefrom, the employee may not recover damages from his employer for an injury due to such defect that is unknown to the employer.”, however that rule is subject to various qualifications and modifications which the majority of the court have not taken into consideration and applied to the facts in their decision of this case. That principle of law is not applicable to even simple tools when the master or employer has actual knowledge of the unsafe and defective condition of even a simple tool and the servant or employee does not have any knowledge of the unsafe or defective condition of the tool or appliance.
In this case the majority of the Court are holding that “The statutory provision that ‘An employer, in all cases shall indemnify his employee for losses caused by the former’s want of ordinary care.’ (Sec 34-0203 RCND 1943) is applicable in the case of a gratuitous employee as well as an employee for reward, and in determining the employer’s liability the same rule applies as in the case of master and servant.” I agree with that statement of law as set out in Syllabus No. 2 of the majority opinion.
The uncontradicted testimony of A. H. Pierce, the Chief Rabban of Kem Temple, L. B. Hiler, former stage director and John Mclver, who testified he was stage director of Kem Temple at the time of the accident, show conclusively that the defendant and its officers and agents were guilty of negligence in that they furnished the plaintiff, Prank Olson, who was a gratuitous employee of Kem Temple, with this long, fourteen foot stepladder which was in an unsafe and defective condition at the time they furnished the stepladder to the plaintiff and that they had knowledge of the fact that it was in a defective and unsafe condition for a long time prior to the date of the accident in question. The testimony further shows that they had knowledge of the fact that such stepladder was a'second hand stepladder when they received it; that it had been in their possession for at least fifteen years prior to the accident, during which' time it had become out of repair, and that it had been repaired at least once prior to *391the date of the accident and had been repaired at least once by tightening the screws and nails in the rungs -of the ladder.
Mr. A. H. Pierce, the Chief Babban, was called as a witness by the plaintiff and testified as follows: (Page 76 of the official reporter’s transcript.)
Q I will ask you whether or not in your visits to Mr. Olson at the hospital on one or two occasions you told him that this ladder was so unsafe it should never have been sent out to the pavilion at all?
A Yes.
Q Yon told him that?
A Yes.
Mr. Pierce, as Chief Babban of Kem Temple, was the person in general charge of the general activities of the temple in preparing for their various social events and was in general charge of the preparations for the reception that was to be held on this particular occasion. Pie would be in the same position as the General Foreman on a construction crew and certainly if such a General Foreman made an admission that a ladder or other appliance was furnished to an employee in a defective condition, such an admission would be binding upon his principal and the admission of the Chief Babban, in this ease, that the ladder was in a defective condition when it was furnished to the plaintiff, would be binding on Kem Temple and would show knowledge on the part of the employer that it was aware of such defective condition. That being the case the jury had a perfect right to take that admission into consideration in arriving at their verdict in the case and would have the right to draw the reasonable inference from such admission that the officers of Kem Temple had knowledge of the defective condition of the ladder prior to the accident. The same witness, A. IP. Pierce, Chief Babban, was called as a witness for the defendant and at page-187 of the official transcript testified as follows:
A Well it was a flimsy rickety ladder. That is the only way you can describe it.
Q And was that the condition of it over those 15 to 16 years you knew it?
*392A At least the last ten years:
Q Do you know whether or not any repairs were ever made on that ladder?
A Not that I know of.
In view of the fact that he was called as a witness for the defendant, the attorney for the defendant had a full opportunity to explain or modify the statement that he had made to Mr. Olson in the hospital, but no modification, or further explanation of that statement, was made and it therefore stands as the uncontradicted testimony in the case, that the ladder was in a defective condition at the time it was furnished to Mr. Olson, of which fact he, as an officer of the Temple, had full knowledge and on that testimony alone the jury would be justified in arriving at the conclusion that the defendant was guilty of negligence.
L. B. Hiler was called as a witness for the Plaintiff and testified on page 77 of the transcript that he had been stage director of Kem Temple for fourteen years; that the ladder in question was obtained by the lodge in 1941; that it was an old ladder at the time they obtained it; that he had tightened the screws and nails; that it was not too bad, but it was rickety, “as Mr. Mclver said a while ago.” If you got up and moved around on it, it would sway, etc.
Q Was the ladder unsafe for that work?
A Yes, it was high, etc.
Q Do you know whether or not all the cross braces were on the ladder ?
A No, they were not, the bottom one was gone. It was broken out. I guess it was gone all the time they had it. (Page 81) The brace was off for many years.' (Page 83) It was a second hand • ladder when he gave it to us.
Mr. John Mclver was called as a witness for the Plaintiff and testified that his position was officially known as the Stage Director. He testified: “I have twenty-four men in my group and we handle all stage and dining room or ball room and electrical effects.”
Q How long had you been familiar with the ladder prior to that time approximately? .(Page 69)
*393A Fifteen years.
Q What was the condition of that ladder ?
A It had been in nse for a long time and it was what we call, rickety.
There was also some testimony by one Clyde Steenerson as to the unsafe condition of the ladder, but he was testifying to the condition of the ladder after the accident. He had never used it prior to that time bnt said he saw it around in the cloakroom of the Temple but never made any special examination of it. However, his testimony in no manner negatives or contradicts the testimony of the other witnesses who' had seen and used the ladder prior to the accident and knew of its defective condition..
In view of the uncontradicted testimony there is conclusive proof that the ladder was old, weak, rickety, defective and unsafe at the time of the accident and that such fact was known to the defendant, its officers and agents in charge of the work. It therefore follows that the defendant and its agents were negligent in that they had neglected to use ordinary care for the protection of the plaintiff.
“It is the master’s duty not only to provide proper appliances for the use of his employees, but also to exercise ordinary care to keep the appliances in good repair.”
The master’s duty to provide proper appliances and to keep them in good repair cannot be delegated so as to avoid personal responsibility for the due performance of that duty
The employee does not assume the risk of injury caused by the master’s negligence, where he had no knowledge of the existing danger. Meehan v. G. N. Ry. Co. 13 ND 432, 101 NW 183.
“The simple tool doctrine has no application where the tool inflicting the injury was being used by another than the injured servant, especially where it is not being used in the ordinary way, or where the master had actual knowledge of the defect and the employee' had not. Further it has been held that the ‘simple tool doctrine’ is inapplicable where the defect in the tool was not observable or discoverable by inspection such as a workman using it could reasonably be expected to make.” *394Southern Ry. Co. v. Cowan, 138 SE 331, 334, 52 Ga App 360, 39 Corpus Juris 763, Note 72.
“Simple Tool doctrine has no application ■ where the master had actual knowledge of the defect and the employee had not. (Note 72) Arenson v. Smith, 120 Wash 98, 206 P 960; Randal v. Gerrick, 104 Wash 422, 176 P 675; Stork v. Chas. Stolper Cooperage Co. 127 Wis 318, 106 NW 841, 7 Ann Cas 339.
“A defect in a ladder, arising from age or decay, might not be discoverable by such inspection as a workman is expected to make, and might be upon more careful examination. . . . And we think it was fairly open to the jury to find that the defective condition of the round might have been discovered had it been suitably inspected; not, perhaps, by such an inspection as would naturally be given to it by the workman upon it, whose duty it was to work, not to inspect, and who might lawfully rely upon the presumption that the master had performed its duty, but by such an inspection on the part of the master as reasonably would be necessary to make sure that an appliance upon which the servant was to risk his life or limb every time he used it was reasonably safe.” Twombly v. Consolidated Electric, 98 Me 353, 64 LRA 551.
It is my opinion that the above statement of law is especially applicable to the facts in this case, where the evidence shows that the officers of tlie Temple were in the habit of calling upon its members from all walks of life who were not accustomed to such work, to use such stepladders in carrying on the activities of the Temple. This is especially true in this case where it is an admitted fact, uncontradicted by any testimony whatsoever, that the ladder was old and rickety, had been in use in and around the lodge for at least fifteen years, was a second hand ladder when they obtained it and especially so in view of the testimony of the Chief Rabban that the ladder was defective and never should have been sent out there for the work they were about to do.
In the case of Phillip Carey Roofing Company v. Black, 129 Tenn 30, 164 SW 1183, 51 LRA NS 340, the Court said,
“The general presumption is that a master is bound to inspect *395tools or appliances'furnished by him to a workman, and to keepi them in sufficient repair. If however, the tools or appliances! are common or simple tools, there is an exception to the general j rule. The presumption in such cases is that the servant is equally conversant with the nature of such simple or common tools, and: is in as good a position as the master to discover any defects therein. . . . The foundation of the simple tool doctrine is the assumption that the knowledge of the master and servant must be equal. Such a presumption cannot be indulged where the master has actual notice of a defect, where the proof shows his knowledge is superior. If the master is, as a matter of factr cognisant that a tool which he furnishes an employee is in such a condition as to render its vise by the employee dangerous to the latter, he will be- liable for an injury sustained by the emr ployee in the use of such an implement where the defect is not known to the employee, and is not of such a nature as to be discovered by that observation which would naturally accompany its use. Guthrie v. L. & N. Ry. Co., 11 Lea 372, 47 Am Rep 286; Stork v. Chas. Stolper Cooperage Co., 127 Wis 318, 106 NW 841, 7 Ann Cas 339; Mercer v. Atlantic Coast Line Ry. Co., 153 NC 399, 70 SE 742, Ann Cas 1912A, 1002, 2 NCCA 118. In the latter case it is - apparently held that the duty of a master to exercise ordinary care to furnish reasonably proper tools to his servants applies to simple as well as complicated, tools, and the rule is relaxed only as to the dtity of inspection thereafter. Although the master is not required to inspect simple tools previously furnished to the employee, to discover defects of which the employee using such implements should be aware, and although generally no inspection of a simple tool may be necessary at the time it is delivered to an employee, yet if the master furnishes such a tool, with a dangerous defect of which he has actual knowledge he is negligent. He should%not be permitted to expose the servant to such a risk particularly if the defect is of such a character that it might be overlooked by the servant.”
In the case of Stork v. Charles Stolper Cooperage Co., supra, the Supreme Court of Wisconsin held: Syllabus 2.
“The rule that a master is not liable for injuries' resulting from defects in ‘very simple tools’ has no application where *396the master has actual knowledge of the defect■ and the employee has not.”
See the discussion of the rule and its exceptions starting on page 842 and going through the first column on page 843.
Most of the cases cited by Judge Morris in the majority opinion are from Minnesota and Michigan which recognizes the so-called “simple tool doctrine.” In the very late case of Person v. Okes, 29 NW2d 361, which is cited by Judge Morris, the Court held: (Syllabus 1.)’ (By the Court)
“The simple tool doctrine, under which a master is under no duty to inspect and discover defects, if any, in simple tools and instrumentalities the use of which is attended ordinarily with no danger and to warn his servant thereof, has no application where the master has knowledge of the defect and the servant does not and where the defect is of such a character as not to be obvious from observation ordinarily accompanying its use. Stork v. Charles Stolper Cooperage Co., (supra) 7 Ann Cas 339. In the Stork case the Court said 127 Wis at page 322, 106 NW at page 843, 7 Ann Cas 339: “. . . As stated above, the relaxation of the master’s duty and liability rests on the assumed equality of knowledge and ability to discover the defect complained of. It can have no application to a defect of which the master is actually cognizant, and which, as a reasonable man, he should appreciate is likely to result in injury to one using the implement, as it is likely to be used, and which is neither known to the employee nor of such a character as to be obvious to that observation which may be expected to accompany its use. In such case the general rule of negligence as above stated is fully effective, and the master who knowingly and negligently exposes his employee to a peril unknown to the latter must respond for the damage which results.”-
Syllabus (5, 6) 3. (Person v. Okes)
“The applicability of the simple tool doctrine to the instant case depends on whether defendants knew of the alleged defect before plaintiff used the stool and possessing such knowledge,' failed to warn her of that fact. .If the answer to this question is in the affirmative, the case does not come within the rule, and if the answer is in the negative if does. We think the answer *397(under the fact) must be in the negative. . . . She testified that the stool was in “perfect condition” and that she discarded it for the reason already mentioned, which was other than for a defect therein. Her uncontradicted and unimpeached evidence is to the contrary.”
In the case at bar the uncontradicted and unimpeached testimony is directly to the contrary, the evidence showing both the defective condition of the ladder and the knowledge on the part of the employer. .
In the case of Nichols v. Bush, 289 NW 219, 291 Mich 473, which is also cited by the court in its majority opinion, the Supreme Court of Michigan indicated that it would follow the same rule as stated in the ease of Person v. Okes, supra, and the case of Stork v. Chas. Stolper Cooperage Co., supra. By referring to Syllabus #8 we find it reads as follows:
“In an action by household servant against employers to recover for injuries suffered from fall from ladder, reviewing-court on appeal from a verdict directed for employers was not required to consider the effect of an alleged admission by employers that ladder was unsafe where evidence failed to establish that fall resulted from defective condition of ladder.”
In connection with that phase of the case the Court said: Syllabus (7, 8)
“We do not overlook the claim of plaintiff that the defendant Plarriet Bush stated to the plaintiff after the accident: ‘Didn’t you know that was “unsafe”,’ which must be accepted as true in view of no contradictory testimony, and the direction of the verdict against the plaintiff. By such claim, it is. sought to establish defendant’s negligence on the ground that it was an admission on plaintiff’s part that the ladder was unsafe and that defendants had knowledge of this fact.' In view of the foregoing disposition, however,- it is unnecessary to consider this phase of the ease.”
The admissions of the unsafe condition of the ladder by the defendants in the case at bar are unimpeached, unqualified and uncontradicted. As a matter of fact the defendants in their side of the case confirmed the fact that the ladder was unsafe.
*398I desire to call attention to the fact that both, the Michigan and the Minnesota courts are courts which hold to the doctrine ■of the simple tool, but certainly these cases also indicate that if the Master has knowledge of the defects and the employee ■does not, that the Master is liable in damages, even if it is a simple tool.
In 35 American Jurisprudence at Pages 143, 573, 574, it is stated that the simple tool doctrine is subject to various modifications: “Again a case for recovery is presented where the evidence shows that whereas the employee did not know of the ■defective condition of the offending tool, the employer did have actual knowledge thereof.” This statement is quoted in the case of Fishburn v. I. H. Co. 138 P2d 471.
In the case of Ft. Smith & W. Ry. Co. v. Holcombe, 158 P 633, LRA 1916F, 1237, the Court held:
“Where a simple tool becomes defective and the master has actual notice of such defect, and the servant injured- had no knowledge of such defect, and injury results from the use of such tool by a fellow servant, the master is liable.”
In that case they quote the Stork case, and also the case of Savannah Ry. Co. v. Pughsley, 113 Ga 1012, 39 So 473, which holds to the same effect.
In view of the fact that the undisputed, unimpeached testimony in the case shows that the defendant furnished the plaintiff with a defective stepladder, with knowledge on the part of the defendant and its agents that the same was defective, and the law applicable to such a situation, the writer is of the opinion that the action of the trial judge in setting aside the jury’s verdict in favor of the plaintiff and the granting of the defendant’s motion for a new trial, was contrary to law and not warranted by the evidence; that the trial judge in doing so invaded the province of the jury as the trier of facts, and that it was an absolute abuse of discretion.
Section 28-1902 sets out the different causes for which a verdict may be vacated and a new trial granted, and the only purported grounds for the granting of a new trial in this case is as stated by the Court in its majority opinion, viz: “The trial *399court granted the motion for a new trial on the ground that the evidence is insufficient to support the verdict in that the evidence' does not show that the defendant was negligent or that the plaintiff was free from contributory negligence.”
However, the Trial Court amplified and explained that statement by saying that there whs no evidence to show that the defendant had any knowledge of the defective ladder and by making the further statement that the plaintiff made no inspection of the ladder. A reading of the transcript of the evidence clearly indicates that the' testimony is to the contrary. I have heretofore set out the testimony showing that the defendant had knowledge of the defective ladder. With reference to the statement that.the plaintiff made no inspection or test of the ladder, the following excerpts from the official.reporter’s transcript shows that he did make an inspection and test of the ladder:
Page 48.
Q You know that the ladder was a very old ladder? •
A I could not testify to that. I had not used it before. I had seen it in the cloakroom.
Q Did you look over the ladder and make an inspection of it at the time you set it up?
A I shook it to see if it was solid and I pulled down the braces.
Q Did you make any further inspection of it?
A No, except what I could see. In my own mind I thought it was rigid enough to climb it.
Q How about the rungs of the ladder ?
A Those I used until I got to the center were solid.
Page 50.
Q Had you noticed any of the rungs of the ladder weak or weakening or anything?
A No, I had not.
Q And you made no inspection of the rungs of the ladder above where you had already stepped?
A Not above where I had already stepped. My examination of the ladder when' I set it up for using it, I made sure that the *400center part was down, and I shook it to be sure it was balanced and all four legs on the floor.
Then as to the cause of the accident, the testimony of the plaintiff was as follows:
Page 11.
A. And then as I mentioned, I had occasion to get up. a little higher to fasten the streamers, and the step turned , on me and caused me to lose my balance.
Pa,ge 12.
A When I took the other step up there the step turned and caused me to lose my balance and fall.
CROSS EXAMINATION:
Q That ladder has been around there for a long time?
A I presume it has.
Q For how many years ?
A That I would not know.
Q And the ladder was used when needed by the various Masonic organizations from time to- time?
A I would not know.
Q And as the ladder you had used before?
Á I had not used it before. I.just saw it in the cloakroom upstairs.
As the foregoing testimony indicates the plaintiff made an examination and inspection of the ladder. As to whether or not he made such an inspection of the ladder as would naturally be given to it by the workmen upon it, and whose duty it was to work, not to inspect, and who might lawfully rely on the presumption that the master had performed his duty was certainly a question of fact to be determined and taken into consideration by the jury, and it must be assumed that the jury took that fact into consideration and no doubt did, in arriving at their verdict in this case. Questions of negligence and contributory negligence are questions of fact to be determined by the jury from the evidence in the case.-
As stated in the case of Missouri Pacific Railroad Co. v. Spangler, 140 F2d 917,
“It was for the jury to decide whether such -general observa*401tions or inspection as the employee reasonably and practically could have been expected to make in the conditions and situation would have detected the defect and the danger. If it would not then the employee’s failure to inspect Was not contributory negligence.” ' '
The verdict is fully and amply supported by the evidence and affirmatively shows'that the'defendant was négligent and that the plaintiff was free from contributory negligence, and the jury on the undisputed evidence so found and it was clearly warranted in such finding. ' There being uncontradicted testimony that the defendant was'guilty of negligence in the furnishing of a stepladder to the plaintiff with knowledge of the fact that it was defective; the issue was plainly one for the jury, and the jury alone, to determine and not the trial judge.- By attempting to do so he was invading the province of the jury. The jury was the sole and exclusive-judge of the credibility'of the-witnesses-and of'the weight tobe givén to their testimony.
With reference-to-the alleged grounds stated by the trial court as a basis for setting aside the verdict in this case and granting a new trial, I desire to quote from a prior decision of this court in the case of Kohlman v. Hyland, 56 ND 772, 219 NW 228. In that case- this court held,
' Syllabus 1. “In an appellate court-orders- granting new trials stand upon a firmer foundation than orders denying a new trial.”
Syllabus 1. “A motion for a new trial on the grounds of insufficiency of the evidence to support the verdict invoices the discretion of the trial judge, b'Ut the discretion'is' a 'legal discretion to be exercised in the' interests of - justice, and -where the motion is granted, it must appea'r that the alleged cause or ground had an actual existence.” ■'
Syllabus 3.' . . . “Since the facts from"which the inference of negligent driving may be drawn do not rest upon conflicting evidence, and since the inference is one that is clearly warranted, the Gourt, in ruling upon a motion for a new trial, was not'exercising a discretionary power and it was error to grant the motion.”
It seems to me-that this is the exact and precise situation *402that obtains in this case. The testimony as to, the defendant’s negligence does not rest on conflicting testimony and the inference is one that is clearly drawn, and no donbt was drawn by the jury. There is a very able discussion of this subject in the opinion written by Justice Birdzell in this case, concurred in by Chief Justice Nuessle and Justice Christianson. In that case, commencing on page 777 of 56 North Dakota, the court said,
“Orders granting new trials stand on a firmer foundation in an appellate court than orders denying them, (citing numerous cases), A motion for a new trial on the ground of the insufficiency of the evidence to support the verdict, nevertheless, invokes the discretion of the trial court; but this is a legal and not an arbitrary discretion. As was said by this court in an early case, referring to the statutory provision authorizing the granting of new trials on discretionary grounds (Braithwaite v. Aiken, 2 ND 57, 64, 49 NW 419): “This clearly indicates that the trial judge who grants a new trial must act, not arbitrarily, but upon facts showing a legal ground for a new trial.” And, to the same effect are the cases supra, as well as many others that need not be cited. Perhaps the best guide for an appellate court in determining whether or not the trial court has erred in granting or denying a motion for a new trial on a discretionary ground is that suggested in the Colorado case of Clifford v. Denver, S. P. & P. R. Co. 12 Colo 128, 20 P 333, at page 335 (partially quoted with approval in 1 Spelling, New Tr. & App. Pr. Par. 237): “Trial courts may certainly exercise a reasonable discretion in granting new trials, when discretionary grounds exist and are relied on by the applicants. It seems to us, however, that, if the rule of practice concerning judicial discretion be as broad as contended for by appellee’s counsel, a statute authorizing an appeal from such an order is of little practical effect, for the exercise of judicial discretion would render it a dead letter. In order to give it reasonable effect, trial courts must be required to make correct rulings on legal propositions. Where the ground of the application is insufficiency of the evidence to support the verdict; that the verdict is against the weight of the evidence; that it is unjust and *403inequitable, and the like, ... a reasonable degree of discretion exists to allow or deny a new trial; and when the questions involved in the application are close, the ruling of the court should not be interfered with. On the other hand, if the ground of the motion relied on does not in fact exist, or does not constitute a legal ground for a new trial, or the necessity for the application is the result of the applicant’s negligence, the motion should be denied, or the ruling held to be erroneous.
“The discretion vested in the trial court to grant or refuse a new trial is neither an arbitrary nor a general discretion. It is based on the theory that the judge who tries a case, having the parties, their witnesses and counsel, before him, with opportunity to observe their demeanor and conduct during the trial, and to note all incidents occurring during its progress likely to affect the result thereof, is better qualified to judge whether a fair trial has been had, and substantial justice done, than the appellate tribunal. But the fact that the legislative assembly passed a law giving the right of appeal from such orders indicates a purpose to restrict the rulings upon the subject to the application of legal principles.
“The general rule, so often announced, that a stronger presumption obtains in favor of an order granting, than one denying, a new trial, is urged in the present case as a strong reason why the ruling should not be disturbed.. This rule should also be limited to cases wherein the ground on which the new trial was granted constitutes a legal ground for such order, and the alleged causes have an actual existence.”
It was said by Lord Mansfield in Rex v. Wilkes, 4 Burr. 2527, 98 Eng Reprint, 327-334:
“But discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule not by humor; it must not be arbitrary, vague and fanciful; but legal and regular.”
2 Hayne, New Tr. & App. Rev. ed. Par 289.
The discretion of the trial court should be exercised in all cases in the interest of justice and where it appears to the judge that the verdict is against the weight of the evidence it is his *404imperative duty to set it aside. State v. Stepp, 48 ND 566, 185 NW 812; State v. Weber, 49 ND 325, 191 NW 610; Kansas P. R. Co. v. Kunkel, 17 Kan 145, 3 Am Neg Cas 412. “We do not mean,” says Justice Brewer in the Kansas case, supra, at page 172, “that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact; and when the evidence is'nearly balanced, or is such that different minds would naturally' and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding óf the jury is to be upheld by him as against any mere doubts of its correctness. But when his judgment tells him it is wrong, that whether from mistake, or prejudice, or other cause, the jury have erred, and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict, and remanding the question to another jury.”
“While a failure to exercise a discretion that is within the power of the court to exercise is ground for reversal, the wrongful exercise, is equally so, particularly where, as here, discretionary orders are rendered appealable by statute. Olson v. Riddle, 22 ND 144, 132 NW 655. “A test, of what is within the discretion of a court has been suggested by ,the question, May the court properly decide the point either way? If not, then there is no discretion to exercise. If there is no latitude for the exercise of the power, it cannot be. said that the power is discretionary.” 2 Hayne, -New Tr. & App. Rev. ed. Par 289. These principles have found general recognition in this state in a long line of cases from Braithwaite v. Aiken, supra, to Martin v. Parkins, 55 ND 339, 213 NW 574. In the light of these principles we are compelled to examine the record before us to determine whether or not the trial court erred in granting the motion for a new trial.”
To the same effect is the decision of the Supreme Court of Wisconsin in the case of McCarthy v. Thompson, 40 NW2d 560, syllabus number two: See Beattie v. Strasser, 2 NW2d 713.
*405“Where reasons set forth by trial judge as prompting- him to make order granting plaintiff a new trial after verdict for defendants, were not warranted by the- evidence, the trial judge abused his discretion and Supreme Court on appeal would reverse order and remand the cause with directions to reinstate the verdict and enter judgment for defendants.”
See also the case of De Vere v. Parten (Minnesota) 23 NW2d 584 Syllabus 2.
“Where verdict is the only one warranted under the law and by the evidence, error in charge and misconduct of counsel . . . are harmless and not ground for new trial.
In the case of Gordon v. Pappas, Minn., 34 NW2d 293, the Supreme Court of Minnesota held, Syllabus 4:
“If verdict is right as a matter of law, there will be no reversal on ground of erroneous instructions nor on ground of erroneous rulings, if those rulings do not affect the correctness of the verdict.”
Syllabus 5:
“Where verdict for plaintiff was right as a matter of law, error, if any, in charge relating to liability of defendant was not ground for new trial.”
This is not a case where there is any claim or evidence upon the part of the defendant that the verdict is excessive or that it was arrived at by passion or prejudice. If there was any error in the instructions to the jury as to the liability of the defendant in this case it was error in favor of the defendant and prejudicial to the plaintiff.
As stated by this court in many cases, including the cases of Horton v. Wright, Barrett & Stilwell Co., 43 ND 114, 174 NW 67, and Otter Tail Power Co. v. Von Bank, 72 ND 497, 8 NW2d 599, there should be some stability to decisions of the Supreme Court and they should not be subject to constant fluctuation. If the principles of law and procedure announced by the court and set out in syllab'us numbers two and three in the case of Kohlman v. Hyland, supra, for the guidance of attorneys and trial judges, were sound law and were applicable to the facts in that case, they are equally applicable to the facts in the ease at bar.
*406It was a question of fact for the jury to determine whether the act of the defendant and its officers constituted negligence, and it was also a question of fact for the jury to determine whether or not there was any contributory negligence on the part of the defendant.
One of the alleged grounds or reasons that the trial court assigned for setting aside the verdict and granting a new trial was that the evidence does not show that the plaintiff was free from contributory negligence. Of course the burden is upon the defendant to allege and prove contributory negligence. , The trial court was evidently acting under the assumption that it was incumbent upon the plaintiff to prove that he was free from contributory negligence. As stated in the case of Twombly v. Consolidated Electric Co., 98 Me 353, 64 LRA 551, supra, the question of whether or not the defects in the ladder could be discovered by such an examination as the plaintiff would be reasonably expected to make under the circumstances was a matter for the jury to determine from the evidence in the case. That is certainly a question of fact upon which reasonable men might differ and the trial court had no authority to invade the province of the jury or to substitute his judgment for that of the jury on that question.
“The Supreme Court in reviewing the record in an action at law may not resolve conflicts or weigh evidence. Presumably all controverted facts in an action at law are resolved by the jury in favor of successful party. A jury’s findings, based on conflicting evidence in an action at law, will not be disturbed on appeal unless clearly wrong. In testing the sufficiency, of the .evidence to support the verdict, it must be considered in the light most favorable to the successful party, and any controverted fact must be resolved in his favor, and he must be given the advantage of any inference that can be drawn therefrom. It is not permissible for this court in reviewing the record in an action at law to resolve or weigh the evidence.” Bolio v. Scholting, 41 NW2d 913.
In a very recent decision of the Supreme Court of this State *407in the case of Grant v. Jacobs, 32 NW2d 881, at page 886, the court held:
“The jurors were the judges of all questions of fact in the case. To the jury belongs the duty of weighing the evidence under the Court’s instructions and of determining the credibility of the witnesses. The trial judge correctly ref used, to invade the province of the jury.”
In the case of Schnell v. Northern Pacific Ry. Co., 71 ND 369, 1 NW2d 56, this court said that while the granting of a new trial rests in the sound discretion of the trial judge, they further said that such discretion is a legal discretion to be exercised in the interests of justice, and if it appears that the party making the motion has not made a case and there is no reasonable probability that on a new trial he can make a case, an order granting a new trial will not be sustained. The court further said in that ease:
“(4) Of course the burden of establishing contributory negligence in cases such as the instant case is on the'defendant.”
“As to whether or not there is contributory negligence is ordinarily a matter of fact to be determined by the jury. It is only when the evidence is such that reasonable minds must conclude that the plaintiff did not act with due care for his own safety that the question ceases to be one for the jury.”
In the case of Gunder v. Feland, 51 ND 785, 200 NW 909, opinion by Judge Nuessle, the Supreme Court of North Dakota held:
“Where the evidence is in conflict and reasonable men might draw different conclusions therefrom neither the verdict of the jury based on such evidence, nor the order of the trial court denying a motion for a new trial will be disturbed on appeal when the sole ground of attack is that the evidence is insufficient to sustain the verdict.”
The Court further said:
“However, the issue of fact, as thus made, was for the determination of the jury. They saw, as well as heard, the witnesses who testified. It was for them to say where the truth lay, and their verdict comes to this court clothed with every presumption *408in its favor. Erickson v. Wiper, 33 ND 193, 157 NW 592; Thompson v. Scott, 34 ND 503, 159 NW 21; Jensen v. Clausen, 34 ND 637, 159 NW 30. . . . Where the evidence is in conflict and reasonable men might draw different conclusions therefrom, this court on appeal will disturb neither the verdict of the jury based on such evidence nor the order of the trial court denying a motion for a new trial where the sole ground of attack is that the evidence is insufficient to sustain the verdict. Grewer v. Shafer, 50 ND 672, 197 NW 596, and cases cited.”
In the recent case of Ferderer v. N. P. Ry. Co., ante 169, 42 NW2d 217, the court held that,
“Where the sufficiency of .the evidence to warrant a finding of negligence by the jury is challenged all reasonable intendments insofar as the evidence is concerned must be resolved in favor of the verdict.”
Chief Justice Nuessle states in his opinion: “The established rule in- this state is that whether a motion for a new trial shall be granted or denied is largely discretionary with the' trial Judge, án'd unless there is a manifest abuse of discretion on his part, his order denying it will not be disturbed. And this is particularly true when a new trial is granted. In fact in some jurisdictions an order granting á 'new trial is not appealable.” That last statement may be true, but it certainly has no bearing bn the situation in this case of in this state. In the case of Kohlman v. Hyland, 56 ND 772, 219 NW 298, this court in its opinion, concurred in by Chief Justice Nuessle, held: “A motion for a new trial on the grounds of insufficiency of the evidence to support a verdict invokes the discretion of the trial judge, but the discretion is a legal discretion to be exercised in the interests of justice, and where the motion' is granted, it must appear that the alleged cause or ground has an actual existence.”
The Court in that case further went* on to say: “It seems to us, however, that, if the rule of practice concerning judicial discretion be as broad as contended for by appellee’s counsel (or as contended for by Judge Nuessle in this case) a statute author*409izing an appeal from such an order-is of- little practical effect, for the exercise of -judicial discretion-would render it a- dead letter. - In order to give it reasonable effect Trial Courts must-be required to make correct rulings- on legal propositions.” “The discretion vested in the trial court to grant or refuse a new trial is neither an arbitrary nor a general discretion.” . . -. “But the fact that the legislative- assembly passed a law giving the right of appeal, from such order indicates a purpose to..restrict the rulings-upon the subject to. the application of legal, pr.in-' ciples.” . . . “This .rule should, also.be limited to cases wherein the ground on ivhich the new -trial was granted, constituted a legal ground for such order- and- the alleged causes .have an actual existence.” .“-But discretion, when applied to a court of justice, means sound'.discretion guided by law.. It must be governed by rule NOT- BY HUMOR; IT MUST NOT BE ARBITRARY, vague and FANCIFUL;,-but legal and regular.”
The Chief Justice further states- in his opinion: “The Plaintiff was a member- of the defendant organization.-. He-volunteered his- services. ■ He was acting under no compulsion.” • Of course the testimony of the «officers of the lodge shows that he was not' a volunteer in the legal sense. He- was asked by the Chief Rabban of the Lodge-to assist with the work, and-was a member of the Stage-Director’s ciew in-doing that work. In the case of Hitchcock v. Arctic Creamery Co., 170 Iowa 352, 150 NW 731, the Supreme Court of Iowa quoted from the case of Johnson v. Ashland Water Co., 71 Wis 553, 37 NW 823, 5 Am St Rep 243, as follows:
“Under the allegations of the complaint; the plaintiff was engaged in the defendant’s work at'the request of the man in charge of the'work; and,- although it may be said that his employment was for a mere temporary purpose, and that the plaintiff was not expecting any pay-for the work done,- and in that sense the employment was voluntary, - still, being in the defendant’s employment at the request of its servant or foreman, he was not a trespasser, and he was for the time-being, the servant of the defendant, and .entitled to -the same protection as any other servant of the defendant.”" ' •
*410The majority opinion holds that under the circumstances in the case at bar, “The same rule of liability applies as in the case of master and servant.” The Chief Justice has concurred in that principle of law.
The trial court stated, in his memorandum opinion, as one of the alleged grounds for granting the new trial, that the plaintiff had not proven that he was free from contributory negligence, because he did not test the ladder before using it. Of course, as I have heretofore pointed out, and as Judge Christianson has shown in his opinion, the' testimony clearly shows that he did make a test of the ladder before using it and Judge Nuessle states, in his opinion, “Before using the ladder, plaintiff tested it.” He further states, “If the condition of the ladder was as discernible to him on such examination as a reasonably prudent person would give it before using it, as it was to any of the officers of the defendant, then-there'can be no liability for negligence on the defendant's part.” . . . “The plaintiff was no zany.” Of course, whether or not the condition of the ladder was as discernible to the plaintiff, on such examination as he would be expected to make under the circumstances (or a reasonably prudent man would give it before using it), as it was to any of the officers of the defendant corporation, was a question of fact, not to be determined by this court, or even the trial judge, but was a question of fact to be determined by the jury. The jury evidently determined that question of fact in favor of the plaintiff and it is not within the province of this court or the trial court to substitute its judgment for the judgment of the jury on that point, as that would be: invading the province of the jury. Whether the plaintiff was a. “zany” or was not a “zany” does not change the law applicable to the case. He did not assume the risk of injury caused by the master’s negligence in furnishing him a defective ladder with knowledge that it was defective.
In the case of Finch v. W. R. Roach Company, 295 Mich 598, 295 NW 324, at page 327 the Supreme Court of Michigan, in a case which, by the way, involved a three legged step ladder only eight feet high, said:
*411(10-12). “We are much impressed with defendant’s claim that, despite the verdict of the jury, the tipping of the ladder resulted from the plaintiff’s own carelessness, but we are constrained to hold that the issue was properly submitted to the jury. It is our province as judges to determine whether there is room for a verdict, and at this point our inquiry must end, even though as ' triers ■ of the facts we would be impelled to reach a contrary conclusion. From tjie evidence of the experts ■ that there was a latent defect in the construction of the ladder supplied plaintiff, toe cannot say as a matter of law that the circumstances were such that the plaintiff was bound to anticipate or discover there was or might.be any such defect in the short time he was to use the article. At least there was room for the jury to find that the .plaintiff exercised the degree of care required of him for his own safety. Etel v. Grub, 157 Wash 311, 288 P 931. The cases of Kelly v. Brown, 262 Mich 356, 247 NW 900 and Nichols v. Bush, 291 Mich 473, 289 NW 219, do not support defendant’s contention that plaintiff was contributorily negligent as a matter of laiv. In neither case was there any proof of negligence on. the part of the defendant in supplying an improperly designed or o.ut of repair ladder. Where there is such evidence of defendant’s negligence, and the circumstances are such that the.infirmities are not readily discernble, the question of the users contributory negligence may properly be submitted to the jury.”
In passing, I desire to point out that the case of Nichols v. Bush, supra, is one of the main casés cited by Judge Morris in the majority opinion as supporting that opinion, which, under the evidence in this case, is not applicable.
In the case of Florence Bagg v. Otter Tail Power Co., 70 ND 704, 297 NW 774, this court, in an opinion by Judge Burr, concurred in by Chief Justice Nuessle and Justice Christianson held: Syllabus No. 3, “The defense of contributory negligence is an affirmative defense and presupposes negligence on the part of the defendant.” The Court in that case said:
“But the problem in the case at bar is not as simple as ap*412pellant assumes it to be, for it, assumes contributory negligence as a matter of law. Tbe appellant proceeds .on tbe theory -tbe evidence shows conclusively that there was such contributory negligence on..the part of plaintiff as.precludes her recovery. This assumption, of course, admits negligence on the part of appellant, such negligence .as would entitle plaintiff to recover unless her own negligence.. so contributed to the collision as to prevent her from recovering. The negligence of the defendant having been established, it was the duty of the jury to scan carefully the actions of the plaintiff and see whether, under the law of the case and under the rules of pommon sense and Common prudence, she could have avoided the accident.” (citing many North Dakota cases.)
In view of the conclusions that I have reached in this case it is my opinion’ that the Order of the Trial Court should be reversed and the cause should be remanded with directions to reinstate the verdict and enter judgment in favor of the- plaintiff. ■