Campbell v. Siever

• Citation: 253 Minn. 257,91 N.W.2d 474
• Decision Date: 25 July 1958
• Docket Number: No. 37369,37369
• Parties: Raymond CAMPBELL, Appellant, v. Paul SIEVER, d.b.a. Hertz Driv-Ur-Self, Respondent.
• Court: Supreme Court of Minnesota (US)

Page 474

91 N.W.2d 474

253 Minn. 257

Raymond CAMPBELL, Appellant, v. Paul SIEVER, d.b.a. Hertz Driv-Ur-Self, Respondent.

No. 37369.

Supreme Court of Minnesota.

July 25, 1958.

Syllabus by the Court

1. The rule in O'Brien v. American Bridge Co., 110 Minn. 364, 125 N.W. 1012, 32 L.R.A.,N.S., 980, does not apply to a situation where defendant by agreement with plaintiff's employer has reserved control of a truck for the purpose of maintaining it in repair, knowing that plaintiff must use the truck in his work, and where the evidence is undisputed that neither plaintiff nor other drivers of his employer were allowed to make any repairs whatsoever, even though the defect involved was not a concealed one.

2. On a motion for judgment notwithstanding the verdict the single question is whether there is any competent evidence reasonably tending to sustain the verdict. The motion should be granted only when it appears that the evidence is conclusive against the verdict. The motion accepts the view of the evidence most favorable to the verdict and admits every inference reasonably to be drawn from such evidence as well as the credibility of the testimony for the adverse party, and if the application of this rule in the light of the evidence as a whole discloses a reasonable basis for the verdict, the motion must be denied.

Schermer & Gensler, Irvin E. Schermer, Minneapolis, for appellant.

Meagher, Geer, Markham & Anderson, M. J. Coyne and O. C. Adamson, II, Minneapolis, for respondent.

FRANK T. GALLAGHER, Justice.

Appeal by plaintiff from an order of the district court granting defendant's motion for a judgment notwithstanding the verdict.

Plaintiff, Raymond Campbell, was injured on January 10, 1955, when he slipped on a worn spot on the floor of a dry cleaning truck which his employer had leased from defendant, Paul Siever, d.b.a. Hertz Driv-Ur-Self.

Plaintiff was employed for many years by Beatty Zephyr Stores, Inc., herein referred to as employer, as a truck driver to deliver and pick up loads from a number of dry cleaning stores operated by his employer. At the time he sustained the injury he was using a truck leased from defendant in 1952. The leasing arrangement between plaintiff's employer and defendant provided that defendant would provide complete garage service, including inspection and storage space for vehicles, and would maintain vehicles in good repair, mechanical condition, and running order; that employer would deliver to defendant's repair shop vehicles needing repairs or such as requested by defendant for inspection and necessary repairs; and that employer's drivers would not make any repairs or adjustment to the vehicle. Defendant also agreed to make regular inspection of the vehicles, and employer agreed that his driver at the close of each day would report any and all faulty operation or other trouble which he had with the vehicle.

The truck leased to employer was a vanette delivery wagon. It had a steel floor which was referred to as 'slippery.' The floor of the front portion of the truck (the deck), where the front doors were located, was covered with battleship covering which looked like black sandpaper and contained abrasives to keep the driver from slipping. The truck could be entered by either of the two front doors or the back door. In connection with its use as a dry cleaning truck it was equipped in the rear portion with racks on either side running lengthwise for use in hanging freshly cleaned garments. Articles could also be piled along the floor. Unloading could be accomplished from the back door or the right front door, but not from the left front door because of the driver's seat. The back door was not used for unloading in the wintertime plainiff said because the steel floor made it too slippery.

Plaintiff testified that in 1952 he was assigned a new truck and he picked it up at defendant's garage. He said he was instructed by defendant's operations manager, Mr. Edward Westerlund, as to the operation of the truck, the manner of handling repairs, and related matters. 'He told me that all servicing, gassing, greasing, everything was to be done at the garage, and that I was to do nothing with the truck. I didn't even have tools in my truck to change a flat. They would come out and change the flat.' He said he was also instructed by Westerlund that if anything was wrong with the truck he should make out a work order sheet and write down what he wanted done overnight; if repairs were necessary he would then leave the truck overnight. In that connection Westerlund testified that employer's drivers were told not to make any repairs on the truck.

After plaintiff began operating the truck, signs of wear began to appear on the battleship covering underneath the foot pedals at the edge of the top deck and the bottom step. He said that shortly before Christmas in 1954 he fell out of the truck while it was being 'gassed' at defendant's garage. He did not injure himself and had never slipped in the truck before. He testified that Mr. Rex Stubbs, a floorman employed by defendant, was putting gasoline into the truck at the time; that both he and the floorman looked at the worn spot; and that there was bare, shining metal about 9 to 12 inches long and 3/4 inch wide exposed near the edge of the deck. Defendant's floorman told plaintiff, according to the latter's testimony, 'That looks mighty dangerous. You better write that up on an order and have that repaired.' The floorman denied the incident but admitted that it was possible that plaintiff might have fallen from the deck and that he did not recall it. Plaintiff claims that he then wrote out a repair order in which he requested patching or recovering of the worn area and said that he brought the truck back to defendant's garage that night and left it for repairs but when he came to get the truck the next morning no repairs had been made. He said that on that same afternoon he brought the truck back to the garage for a windshield wiper and that he told Mr. Stanley Smaciarz, defendant's shop foreman, that he had written an order for the repairs and was told by him that he would have to wait a couple of days. Smaciarz testified that he might have put on the windshield wiper but did not remember any other conversation with plaintiff.

Between that time and the date of the accident, January 10, 1955, plaintiff said that he made two or three inquiries concerning the repairs from one of defendant's mechanics at the garage and was told that the material to fix the damaged spot had not yet arrived but that the mechanic would fix it when it arrived. The truck was never repaired before the accident.

Plaintiff testified that on January 10, 1955, at the time of the accident, he had returned to his employer's plant for the purpose of unloading soiled clothes which were contained in army duffelbags. He parked the truck with its right front door opposite the door of the cleaning room. The cleaning room door was of heavy steel, fireproof material, and he left it open while he carried the bags individually from the truck into the cleaning room. It was difficult to avoid the worn area because of the structural design of the truck, plaintiff's own height (6 1 ), and the manner in which the duffelbags had to be carried in unloading them. He stayed off the back part of the truck because the metal floor was slippery and it was wet. Plaintiff had unloaded a number of duffelbags and was on his way out of the truck with one of the last ones at the time the accident occurred. As he was placing his right foot forward to step out of the truck and had the foot near the edge of the truck the heavy steel door of the cleaning room slammed, causing him to become startled. His foot hit the worn spot on the edge of the deck causing him to slip from the truck and sustain severe injuries.

Defendant's operations manager, Westerlund, testified that defendant reserved the right to determine whether repairs requested by a driver should be made. He also testified that defendant did not deem the worn area hazardous enough to warrant repairs.

A verdict was returned in favor of plaintiff, but defendant's motion for judgment notwithstanding the verdict was granted. This is an appeal from that order.

The legal questions raised on appeal are: (1) Whether defendant who leased a truck to plaintiff's employer and contracted to maintain it in good repair is liable to an employee of the lessee only if the defect is a concealed one, and (2) whether the trial court was justified in granting judgment notwithstanding the verdict under the circumstances here.

1. It is apparent from the trial court's memorandum that it carefully considered the record before granting judgment...