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turning on the floor had his foot caught between the elevator at the door and the joists of one of the floors, as the elevator ascended.

And in Shellaberger v. Fisher (1906) 5 L.R.A. (N.S.) 250, 75 C. C. A. 9, 143 Fed. 937, where a little girl between five and six years of age, a child of a former tenant of an apartment house, entered its automatic pushbutton electrical passenger elevator at the first floor, and pushed the button to cause it to ascend to the second floor, and, as it rose, one of her legs was caught and crushed between the floor of the car and the second floor of the building, it was held that the child was not guilty of contributory negligence, because she did not possess the maturity or capacity to know the danger, or to appreciate the risk to which she was exposed, and therefore she was not chargeable with any legal duty to avoid it.

This annotation does not purport to cover cases involving contributory negligence upon the part of passengers in leaving elevators, but the two following cases are so close to the point annotated that they are included as throwing some light thereon.

In Mitchell v. Keene (1895) 87 Hun, 266, 33 N. Y. Supp. 1045, where a messenger boy with telegrams for residents in an apartment house entered its elevator and showed the telegrams to the elevator man, who started the elevator and stopped at the third floor, when the boy approached the doorway of the elevator, it having no door, and stood with his left foot projecting out, waiting for the door of the elevator shaft to be opened, and the elevator operator suddenly, without notice, started the elevator again, and the boy's foot was caught between the floor of the elevator and the top of the door of the elevator shaft, and injured, the court said that it was not negligence for the boy to place himself in a position to leave the elevator as soon as the door of the shaft should

be opened, and held that the jury had a right to infer from such facts a want of negligence upon the part of the boy.

And in National L. Ins. Co. v. McKenna (1915) 141 C. C. A. 163, 226 Fed. 165, where a boy thirteen or fourteen years of age entered the elevator of a large office building to be carried to an upper floor, where he had business to transact, and as the elevator approached his floor, about midway between it and the floor below, it slowed down and stopped, and the operator reached his hand out towards the door, and the boy moved forward towards the door preparatory to alighting, and, as the elevator started up again, his foot was caught between the edge of its floor and the sill of the floor of the building, and mashed, the defendant based his argument that the boy was guilty of contributory negligence upon admissions. in his cross-examination to the effect that he appreciated the fact that, if he got beyond the cage, he would get hurt by getting caught, that if he had been paying attention he would not have got his foot caught, and that it was because he did not pay attention to where he was stepping that he got hurt; and the court, in this connection, said: "Admissions of this kind, found in the cross-examination, must, of course, be taken in connection with the other facts of the case as disclosed by the proof. . . . The boy, being thirteen or fourteen years of age, had sense enough to realize, and did realize, that if he stepped too far and at the wrong time he would get hurt. He knew the facts, and appreciated the possible danger if he failed to act cautiously. Was the plaintiff, in taking this step towards alighting in these circumstances, guilty of contributory negligence? In other words, did he thereby fail to exercise the caution and prudence which ordinarily prudent persons usually exercise in like circumstances, or, to put the question to fit the present case, do these facts, and the inference properly deducible from them, furnish any evidence so tending to show that the plaintiff was exercising the care and precaution for his own safety which persons usually exercise in like circumstances as to warrant a jury in so finding? Our common experience

teaches that very prudent persons often take some chances and risks, even if they know the facts and appreciate the risk they are taking.

Here there was evidence tending to show plaintiff had reason to believe that the elevator had stopped for him to alight, and he impulsively stepped forward to do so. Can it be conclusively held that, because he knew as a physical fact that if he stepped too soon he might get hurt, or if he stepped over the edge of the floor he might get his foot crushed, he assumed all risk in so doing, however negligently the operator might have acted? Our common experience is that most people start towards the door of a railway car before it is opened for egress, and we know that people often act impulsively in cases. of emergency, when their judgment is not as sound and reliable as in cases

where circumstances and conditions
admit of deliberation and reflection.
The emergency in which one is called
upon to act is an important circum-
stance and factor in determining
whether he observes the care and pre-
caution which people usually exercise
under similar circumstances. Among
the circumstances so requiring con-
sideration are the attendant exigency
and confusion, if any there be. ...
In this case all these considerations
must be taken into account in deter-
mining whether there was any sub-
stantial evidence tending to show that
ordinary care, as here defined and
elucidated, was observed by the plain-
tiff. In view of them all, we are
clearly of opinion that the issue of
contributory negligence was for the
jury to decide, and that no error was
committed in refusing to take it from
them."
G. V. I.

PRESHO STATE BANK, Respt.,

V.

LLING

NORTHWESTERN MILLING COMPANY, Appt.

South Dakota Supreme Court - November 28, 1921.

(S. D., 185 N. W. 370.)

Appeal disregard of court rules - new trial.

1. The wilful disregard by the trial court of rules established under statutory authority is misconduct, requiring the granting of a new trial by the appellate court.

[See note on this question beginning on page 52.]

-rules as to assignments of error.

2. The court rules do not require the specification of errors to be grouped and each group to constitute an assignment of error.

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the matters sought to be urged are made apparent.

On Petition for Rehearing.

waiver

--

power.

Trial rules
4. Attorneys cannot, even with con-
sent of the trial court, waive compli-
ance with rules promulgated under
legislative authority.

[See 7 R. C. L. 1027; 2 R. C. L. Supp. 493.]

APPEAL by defendant from a judgment of the Circuit Court for Lyman County (Williamson, Jr., J.) in favor of plaintiff, and from an order denying a motion for new trial in an action brought to recover possession of hay. Reversed.

(— 8. D. —, 185 N. W. 370.)

Defendant had contracted for certain hay. Upon its failure to meet its payments, the vendor refused further deliveries, and mortgaged the hay to the bank, which took possession. Defendant's agent then proceeded to convert the hay to the use of defendant, and this action was brought.

Messrs. Bartine & Bartine and Frank C. Wederath for appellant. Messrs. Brown & Brown, for respondent:

Most of the assignments of error must be disregarded because they violate the rule that different errors cannot be joined in one assignment. McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39.

No question not raised in the court below and preserved for review will be noticed on appeal, except lack of jurisdiction.

McPherson v. Julius, 17 S. D. 122, 95 N. W. 434; Reed v. Boland, 31 S. D. 316, 140 N. W. 691; Weiland v. Ashton, 18 S. D. 331, 100 N. W. 737; State v. Sonnenschein, 37 S. D. 139, 156 N. W. 906; Bestak v. Bennett, 44 S. D. 485, 184 N. W. 359; Selbie v. Graham, 18 S. D. 365, 100 N. W. 755. Mr. F. E. Mullen also for respond

ent.

Per Curiam:

This appeal is from a judgment and an order denying a new trial. Respondent questions the sufficiency of appellant's assignments of error.

Appellant evidently has misread the rules governing appeals. These rules do not contemplate any change in form of assignments of error, but merely contemplate that those assignments which raise germane questions shall be grouped and discussed together in the appellant's brief. Appellant seems to have understood that the "specifications of error" were to be so to assignments grouped, and each group was to constitute an assignment of error. While the method followed was incorrect, yet the matters sought to be urged in this court are made apparent under the so-called "assign23 A.L.R.-4.

Appeal-rules as

of error.

ments," through the specifications
referred to therein. -erroneous
We therefore deem method of pres-
that there is suffi-
cient to present the errors com-
plained of.

entation-effect.

The printed record herein discloses that the trial court utterly disregarded rules 25-27 of the rules governing trial courts of record; and yet these rules, established, as they were, under the provisions of chapter 163, Laws 1919, are the law of this state, and binding, as such, upon the courts to which they apply. The workings of these rules, as evidenced by a comparison of the records filed in this court since their establishment with those filed previously thereto, have fully demonstrated their value, in that they have almost entirely removed a heretofore fruitful source of error. can but consider a wilful disregard of court rulessuch rules by a trial court misconduct resulting in a mistrial of any action wherein it shall occur. Furthermore, we regard it such a mistrial as to require this court, whenever it comes to our attention upon appeal, to grant a new trial therefor, and this regardless of whether a new trial has been sought upon that ground.

We -disregard of

new trial.

The judgment and order appealed from are reversed.

McCoy, J., not sitting.

A petition for rehearing having been filed, the following Per Curiam response was handed down January 30, 1922:

Respondent, criticizing the opinion of this court reported in Presho State Bank v. Northwestern Mill. Co. ante, 48, 185 N. W. 370, prays for a rehearing. We refer to such opinion for an understanding of the question passed upon. Respondent, basing its argument upon two statutes of the state-Rev. Code 1919, § 47, "Acquiescence in error takes away the right of objecting to it," and Rev. Code 1919, § 46, "He who consents to an act is not wronged

by it," most strenuously contends that such sections are controlling in this case, and that this court erred in reversing the trial court because of its failure to comply with the rules for trial courts of record. Respondent also expresses some doubt as to whether the files and records in the case disclose that the rules were disregarded by the trial court.

That there may be no question as to the position of this court herein, we announce that the rules in question, promulgated under express direction of the legislature, have all the force of mandatory statutes, and that attorneys, even with the consent of a trial court, have no power whatsoever to waive same. To hold otherwise would practically nullify such rules where the trial courts might desire their observation to be waived. One can readily see the embarrassing position in which it would place an attorney if, in opposition to the known wishes of the trial judge, he should feel required to insist upon the observance of such rules. We cannot approve anything that would inevi

Trial-ruleswaiver-power.

tably lead to the consequences so clearly apparent.

We assume that it was the junior member of the firm of counsel representing respondent who prepared the petition for rehearing, as we feel certain that the senior member of such firm must be in ignorance of at least that part of its contents which expresses doubt as to whether the rules in question were disregarded upon the trial of this action. Senior counsel argued this cause before this court, and openly announced that such rules were entirely disregarded upon such trial. In the light of such admission, counsel are not now in a position to suggest the contrary, especially when the printed record before us fairly advises us of the truthfulness of such admission.

The rehearing is denied.

NOTE.

The violation of a court rule by a trial court as ground for reversal or new trial is the subject of the annotation following WEIBEL v. GARDNER, post, 52.

B. P. WEIBEL, Respt.,

V.

N. E. GARDNER et al., Appts.

South Dakota Supreme Court - March 31, 1922.

(S. D., 187 N. W. 629.)

Appeal failure to comply with rules effect.

While a wilful disregard by the trial court of the rules promulgated by the supreme court for the preparation and giving of instructions to the jury is reversible error, a case will not be reversed where all that appears is that a recess was taken, during which the court prepared its instructions and submitted them to counsel, who requested none, and neither made objection to those prepared by the court nor preserved exceptions to them, and no prejudice to the rights of the party is shown, although the requirements of the rules as to the manner of settling the instructions were not strictly complied with.

[See note on this question beginning on page 52.]

ON motion to strike appellants' reply brief, or for leave to file a supple

(— S. D. —, 187 N. W. 629.)

mentary brief, in an appeal by defendants from a judgment of the Circuit Court for Gregory County (Williamson, J.) in favor of plaintiff. Portion of brief objected to, to be disregarded.

The facts are stated in the opinion of the court. Messrs. Doherty & Talbott for appellants.

Messrs. J. F. Frame and W. J. Hooper, for respondent:

When instructions are given orally, without exceptions or objections, the parties waive their rights under the court rules.

Stamm v. Coates, 4 Dak. 69, 22 N. W. 593; Frye v. Ferguson, 6 S. D. 392, 61 N. W. 161; Kirby v. Berguin, 15 S. D. 444, 90 N. W. 856; Davis v. C. & J. Michel Brewing Co. 31 S. D. 284, 140 N. W. 694; Boss v. Northern P. R. Co. 2 N. D. 128, 33 Am. St. Rep. 756, 49 N. W. 655; Sackett, Instructions to Juries, 14; Garton v. Union City Nat. Bank, 34 Mich. 279; State v. Sipult, 17 Iowa, 575; Vanwey v. State, 41 Tex. 639.

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It appears that this case was tried in circuit court in October, 1919; that appeal was taken within a reasonable time; but that its final submission to this court was unusually delayed. Because of such delay, it happened that the time within which appellants would have a right, under the rules of this court, to file a reply brief, had not expired when this court handed down its two decisions in Presho State Bank V. Northwestern Mill. Co. S. D. -, ante, 48, 185 N. W. 370, 186 N. W. 560. Appellants' original brief did not present any assignment based upon claimed errors in instructions or manner of settling same; but, in the reply brief, appellants state that the trial court failed to comply with the rules of this court in the settling of the record; and, relying upon our decisions in the Presho Bank Case, they ask for a reversal and for a new trial in the circuit court.

Respondent severely criticizes

our decisions in the Presho Bank Case; but we are not persuaded that we erred in such decisions. This court has a "general superintending control" over trial courts. Const. § 2, art. 5. Rules 25 and 27, governing trial courts of record, were promulgated under our constitutional power and in compliance with express legislative direction. Laws 1919, chap. 163. We can add nothing to what we have already said as to the wisdom of our rules as demonstrated by the results revealed by appeal records coming to this court since such rules went into effect. These records establish to our entire satisfaction the truth of the words of a practising attorney, who, after the decisions in the Presho Bank Case, wrote to a member of this court, and, after commending

the words used in the second of said decisions when speaking therein regarding the embarrassing position in which the disregard of these rules. had often placed himself and other attorneys, stated: "The rule is certainly a just one, and if so viewed by the profession would be of immeasurable benefit not only in reviewing the case if further necessary, but also preventing the necessity of reviewing the case."

We do not recede from the position taken in our decisions in the Presho Bank Case, and are of the opinion that the duty resting upon us to enforce the rules justifies us in resorting to that means which we feel will most certainly bring the desired results.

However, we do not believe that the facts before us entitle appellants to a new Appeal-failure trial. The facts to comply with are wholly differ

rules-effect.

ent from those in the Presho Bank Case. In the Presho Bank Case appellant asked for certain instructions, and they were refused. The court then gave instructions without giving to counsel any op

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