Ellis v. Far-Mar-Co, Inc., FAR-MAR-C
| Decision Date | 28 November 1983 |
| Docket Number | INC,No. 82-289,FAR-MAR-C,82-289 |
| Citation | 340 N.W.2d 423,215 Neb. 736 |
| Parties | Melvin C. ELLIS, Appellee, v., a Kansas corporation, Appellant, and The Home Insurance Company, a corporation, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Invitor-Invitee: Agents. Although an invitee on the premises of another may very well be aware of the dangers inherent in the premises, he may not necessarily be aware of the dangers inherent in the actions of the agents of the possessor of the premises.
2. Invitor-Invitee: Agents. Where an invitee on the premises of another must of necessity knowingly place himself in a position of danger so as to accomplish his job, he is nevertheless entitled to a warning from the agents of the possessor of such premises before the latter cause a change in circumstances likely to cause injury to the invitee.
3. Jury Instructions. Instructions must be taken as a whole and construed together, and when instructions cover the issues and fairly submit the case to the jury, the jury's verdict will not be disturbed unless it is clearly erroneous.
4. Juror Misconduct. It is well established that charges of juror misconduct must be substantiated by competent evidence on the motion for new trial, the misconduct complained of must relate to a matter in dispute relevant to the issues in the case, and the misconduct must have influenced the jurors in arriving at a verdict.
5. Juror Misconduct. Proof of mere indiscretion in the conduct of a juror is not sufficient to avoid a verdict unless the proof establishes that his conduct was of such character that prejudice may be presumed.
6. Motions for New Trial: Juror Misconduct: Appeal and Error. When a new trial is sought for juror misconduct, the finding of the trial court will not be set aside unless the evidence of misconduct is clear and convincing.
Scott J. Norby of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellant.
Richard D. Sievers of Marti, Dalton, Bruckner, O'Gara & Keating, P.C., Lincoln, for appellee Ellis.
This is an action for damages for personal injuries sustained by the plaintiff while he was a business invitee on the premises of the defendant. The jury returned a verdict of $67,000 in favor of the plaintiff, and the defendant has appealed.
The plaintiff, Melvin C. Ellis, is an experienced, licensed grain sampler employed by The Lincoln Inspection Service. On February 22, 1980, the plaintiff was sampling grain at the defendant Far-Mar-Co's grain elevator in Lincoln, Nebraska. He was working with three employees of the defendant, known as the track crew, who were loading grain hopper railroad cars in the track shed loading area at the defendant's elevator.
The track crew consists of a loader, a brakeman, and a flagman. The railroad cars are brought into the loading area, which is on a downhill grade, and stopped so the compartment opening on the top of the first car is positioned directly under the load-out chute, which comes down from the elevator and fills the car from the top. Grain hopper cars have either three or four compartments. The loader stands on top of the car that is being loaded and operates the controls for the load-out chute, and raises and lowers the chute in and out of the compartment openings. He also signals the flagman, who stands on the ground next to the car, to direct the starting or stopping of the flow of grain. When a compartment is loaded, the grain chute must be lifted out of the compartment opening in order for the car to be moved. When lifted, the bottom of the spout clears the top of the car by approximately 18 to 24 inches.
After the loading chute is raised the loader or the flagman signals the brakeman to release the brake to permit the car to roll forward to the next compartment opening. The brakeman is situated at the end of the car and takes directions from the loader or flagman, since he cannot see the top of the car. When a car is filled with grain, the brake is released and the car rolls out of the loading area. The grain sampler works with the loading process to obtain samples of grain from each car as it is loaded.
On the date of the accident the plaintiff was working with the track crew of the defendant when the cars were being loaded. When a car was full and the plaintiff had completed his sampling, another car would be moved in and the plaintiff would move his samples and equipment to the next car, or if there was no next car, to a platform located alongside the top of the railroad cars. At the time of the accident the plaintiff had just finished probing the last compartment of the last car in a string of eight cars.
There is a direct conflict in the testimony regarding the events surrounding the loading and sampling of the last car. The plaintiff testified that he was standing on top of the car, waiting to close the last compartment, with the load-out chute to his back, when the car suddenly began to move forward, away from the platform. He testified that he slid his tools and equipment onto the platform, but before he was able to leave the car himself, the load-out chute bumped him on the back. To avoid being pushed off the car by the chute, the plaintiff jumped off the edge of the car and injured himself on the track below.
The plaintiff offered the testimony of Far-Mar-Co's loader that he saw the plaintiff gather his tools and step off the top of the car onto the platform alongside the car. He said that he then told the brakeman to release the brake, looked again, and saw that the plaintiff was still on the platform. The loader then climbed off the car and the brake was released. Obviously, the jury disbelieved this testimony, as it had a right to do.
No witnesses saw the plaintiff fall. The general manager of the elevator was the first to reach the plaintiff lying on the tracks, and he testified the plaintiff told him that the chute knocked him off the car. The plaintiff sustained a compression fracture of the lateral talus and a fracture of the tibia.
The defendant's primary contention on this appeal is that instruction No. 14, given over the objection of the defendant, was erroneous and prejudicial. The critical paragraph of that instruction is: "If an employee or employees of a grain elevator know or should know that a grain inspector is working on top of [a] railroad grain car, such employee or employees have a duty to warn the grain inspector that the grain car is about to be moved and give the inspector a reasonable time in which to protect himself from injury before the rail grain car is moved."
Defendant contends that the above paragraph included in instruction No. 14 is an incorrect statement of the law because it instructed the jury that the defendant had a duty to warn the plaintiff of the danger, regardless of whether the plaintiff also had knowledge of the danger. In other words, the defendant contends the instruction took away a factual consideration from the jury, the question whether a possessor of land had an affirmative duty to warn.
The defendant, citing NJI 8.22 and Restatement (Second) of Torts §§ 341A and 343 (1965), insists that there is no duty on the part of a possessor of land to warn an invitee unless such possessor should expect that the invitee did not know of or would not discover the danger and would fail to protect himself.
The plaintiff contends that this is not a case of pure premises liability, but rather it involved active negligence on the part of defendant's loading crew.
We agree with the position taken by the plaintiff. This accident did not arise out of a defect or condition of the premises. Rather, as determined by the jury, it was due to a failure on the part of those employees charged with the responsibility for moving the grain cars to do so in a reasonable manner.
Crotty, Aplnt. v. Reading Industries, 237 Pa.Super. 1, 345 A.2d 259 (1975), involved an accidental injury suffered by the plaintiff while on the defendant's premises as...
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