Crawford v. Woodrich Const. Co.

• Citation: 239 Minn. 12,57 N.W.2d 648
• Decision Date: 20 March 1953
• Docket Number: No. 35862,35862
• Parties: CRAWFORD v. WOODRICH CONST. CO., Inc. et al.
• Court: Supreme Court of Minnesota (US)

Page 648

57 N.W.2d 648

239 Minn. 12

CRAWFORD v. WOODRICH CONST. CO., Inc. et al.

No. 35862.

Supreme Court of Minnesota.

March 20, 1953.

Syllabus by the Court.

1. In fulfillment of the legislative intent the last paragraph of M.S.A. § 176.06, subd. 1, of the workmen's compensation act, should be interpreted and actually applied as if it in fact read as follows:

'The provisions of subdivision 1 of this section shall apply only where the employer liable for compensation and the other party or parties legally liable for damages were both either insured or self-insured and were engaged in the due course of business,' On the same project, and their employes were working together in the performance of such project in a manner which exposed them to the same or similar hazards on the premises where the injury was received and at the time thereof, and not otherwise.

2. The employer who merely carries on a systematic inspection to insure that he is getting the quality of services for which he has obligated himself to pay under a construction contract is not engaged in the same project as the contractor who performs the work.

3. In using the instrumentalities under its control the company owed to the plaintiff, a state inspector known to be present on the construction site, the duty of exercising reasonable care for his safety.

4. If the occurrence of an intervening cause ought reasonably to have been anticipated, such intervening cause will not interrupt the causation between the original cause and the injury, since reasonably foreseeable intervening forces are within the scope of defendant's original fault.

5. A moment of mental preoccupation on the part of a person charged with the duty of making an exacting inspection of a nature which demands concentration cannot be said to constitute negligence as a matter of law.

6. The evidence is ample to sustain a finding that the company Alone was negligent in the manner in which it placed its equipment and in the manner in which it controlled and directed the paving operations within the congested area, and there is no basis for the contention that the verdict is perverse.

7. The theory upon which a case is tried below becomes the law of the case and must be adhered to on appeal.

Freeman, King, Larson & Peterson, Minneapolis, for appellant.

Ray G. Moonan, Minneapolis, John M. Fitzgerald, New Prague, for respondent Baker.

Ernest A. Rich, Minneapolis, for Zaske. Warner & Ratelle, Minneapolis, for respondent Crawford.

J. A. A. Burnquist, Atty. Gen., Louis B. Brechet, Sp. Asst. Atty. Gen. and Thomas K. Scallen, Sp. Asst. Atty. Gen., amici curiae.

MATSON, Justice.

Defendant Woodrich Construction Company appeals in a personal injury action from an order denying its alternative motion for judgment notwithstanding the verdict or a new trial.

Plaintiff, who has already received benefits from his employer under the workmen's compensation act, brought this action in tort against three third parties; namely, Woodrich Construction Company, hereinafter called the company; Walter Baker, an operator of a fleet of gravel trucks; and Elmer Zaske, a truck driver, who owned and operated his own truck under an agreement of hire with Walter Baker. The jury gave plaintiff a verdict for $80,000 but only against the Woodrich Construction Company which is the appellant herein.

The company contracted with the state of Minnesota to lay a concrete roadway on state highway No. 44 between Caledonia and Spring Grove, Minnesota. Pursuant to this undertaking, the company entered into an agreement with defendant Walter Baker, whereby the latter agreed to furnish dump trucks to haul dry mix to the job from the company's batch plant near Spring Grove. The company paid Baker according to the number of batches of dry mix hauled. Baker hired the truckers, among them defendant Elmer Zaske who hauled the mix in his own truck. Baker paid Zaske by the hour and also paid him for the use of his truck. Plaintiff William M. Crawford, 23 years old, was employed by the Minnesota highway department as an engineer's aid or inspector on the highway project. He was seriously injured while he was checking the alignment of the concrete forms when Zaske backed his truck over him.

We are concerned with the following issues:

(1) Were the state of Minnesota, as plaintiff's employer, and the defendant company engaged in the due course of business (a) in the furtherance of a common enterprise, or (b) in the accomplishment of the same or related purposes within the meaning of M.S.A. § 176.06, subd. 1, so as to bar plaintiff, who had received benefits from his employer, from proceeding in tort against the company?

(2) Does the evidence sustain a finding that the company was negligent and that such negligence was the proximate cause of plaintiff's injury?

(3) Was plaintiff guilty of contributory negligence as a matter of law in inspecting the alignment of construction forms from a position where men backing trucks might not be able to observe him?

(4) Was the issue of whether Baker was an independent contractor or an employe of the company properly submitted to the jury under the trial court's instructions?

(5) Was the verdict perverse?

The accident occurred about 2 p.m. on June 8, 1950, about one-half mile southwest of Caledonia where the road runs generally in a north and south direction. The work of laying the concrete had started near Caledonia seven days earlier. As fast as the concrete was poured the paving machinery and equipment was moved southward. The cement mix or batch, however, was brought in from the south by dump trucks which traveled from the batch plant near Spring Grove to the cement mixer or paving machine hereinafter called the paver.

A proper understanding of the facts requires a consideration of the methods and machinery employed in preparing the roadbed. First, bladers removed the old highway surface down to the subgrade, which was in turn leveled by rough graders. After the blading and rough grading, steel forms nine inches high were set 22 feet apart, one on each side of the highway. These steel forms served a dual purpose. First, they served as lateral forms between which the concrete road slab was poured. Secondly, they served as rails upon which some of the paving equipment rode. The company employes set out the forms, aligned them horizontally and laterally, oiled the inside of the form so that the concrete did not stick, and then tamped the subgrade on which the forms rested where it was not solid. After the forms were set, a machine called a fine grader, which rode on the forms, leveled off the subgrade to the required depth and cast the dirt scrapings into windrows which were deposited outside the forms. At the time of the accident, as the jury could reasonably find, these windrows were about one and one-half feet high and their base touched, or came hear to, the outside of the forms. After the fine grader had completed its work, a five-ton roller, six feet wide, was used to pack down the subgrade.

At the time of the accident, the various pieces of road-making machinery and equipment were located on a straight piece of roadbed and in the following order. Farthest to the north and midway between the forms, was the cement mixer or paver which consists primarily of a happer or 'skip' into which the mix was dumped by the trucks, a mixer, and a boom which distributed the mixed concrete between the forms. About 280 feet to the south, on the left or west side of the space between the forms, was the turntable, an H-shaped ramp which was hinged and set on a pivot. The turntable was used to turn the loaded trucks around so that they could back up to the paver and dump their loads into the skip. As the trucks approached the turntable from the south, a company employe in charge of the turntable would push down the end of the turntable so that the truck could drive forward upon it to a point at which the truck balanced on the turntable. The turntable operator would then manually push the turntable around until the truck faced in approximately the opposite direction and then he would signal the driver to back down. The jury could reasonably find that, Contrary to the situation on the day of the accident, it was customary on a straight roadbed to place the turntable on the right-hand side of the road near the east form. This practice was followed so that the truck driver, who could not see behind him in the area of the right rear wheels, could lean from the left side of the truck cab and watch the east form as a guide when he backed his loaded truck toward the paver.

On the day of the accident, the six-footwide roller was parked about midway between the turntable and the paver at a distance of three of four feet from the east form. This position left a lane of only about 12 feet wide between the roller and the west form. The area between the turntable and the paver has been appropriately described as the business or congested area because here the immediate paving operations were concentrated and a dump truck, either loaded or unloaded, passed in or out about once every minute. Just north of the roller, when the accident occurred, stood a truck which had unloaded and was waiting to permit the Zaske truck to back off the turntable to the paver with its five-ton load of mix.

The Loaded trucks had been backing up between the forms in the congested area at the rate of about one every two minutes. The evidence sustains a finding that, because the turntable was located near the west form and not on the east side, the truck drivers in backing were unable to use the east form as a guide and instead relied upon rather well-defined tire tracks imprinted upon the roadbed by the prior passage of backing trucks. The tire track made and used by the right wheels of the trucks was about two feet wide and its outside edge was approximately two and one- half feet east from the west form. It is not...