Howells Elevator, Inc. v. Stanco Farm Supply Co., Inc.

• Decision Date: 25 May 1990
• Docket Number: No. 88-439,88-439
• Parties: HOWELLS ELEVATOR, INC., Appellee, v. STANCO FARM SUPPLY CO., INC., Appellant.
• Court: Nebraska Supreme Court

Page 777

455 N.W.2d 777

235 Neb. 456

HOWELLS ELEVATOR, INC., Appellee, v. STANCO FARM SUPPLY CO., INC., Appellant.

No. 88-439.

Supreme Court of Nebraska.

May 25, 1990.

Syllabus by the Court

1. Appeal and Error. In a bench trial of a law action, a trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless they are clearly wrong.

2. Judgments: Appeal and Error. A judgment clearly against the weight of the evidence must be set aside.

3. Judgments: Appeal and Error. In reviewing a judgment awarded in a bench trial of a law action, the Supreme Court does not reweigh evidence but considers the evidence in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

4. Appeal and Error. An appellate court has an obligation to reach an independent conclusion on questions of law.

5. Negligence: Proof. A plaintiff accused of contributory negligence must prove defendant's negligence and must be free from contributory negligence more than slight in comparison with defendant's negligence.

6. Negligence. An actor is contributorily negligent if (1) he or she fails to protect himself or herself from injury, (2) his or her conduct concurs and cooperates with the defendant's actionable negligence, and (3) his or her conduct contributes to his or her injuries as a proximate cause.

7. Property: Damages. Where the damage to personal property is such that it cannot be repaired and the property thereby restored to substantially its condition immediately before the damage occurred, or when the reasonable cost of repair exceeds the difference in market value of the property immediately before and immediately after the injury, the measure of damages is the lost market value plus the reasonable value of the loss of use of the property for the reasonable amount of time required to obtain a suitable replacement.

8. Property: Damages: Proof. In order to recover the difference in market value of personal property immediately before and immediately after the injury, a plaintiff must prove (1) that the damage to the property is such that it cannot be repaired and thereby restored to substantially its condition immediately before the damage occurred or that the reasonable cost of repair exceeds the difference in market value of the property immediately before and immediately after the injury, (2) the reasonable market value of the property immediately before the occurrence, and (3) the reasonable market value of the property immediately after the occurrence.

9. Damages: Pleadings: Proof. Subject to the provisions of Neb.Rev.Stat. § 25-804 (Reissue 1989), damages, like any other element of a plaintiff's cause of action, must be pled and proved, and the burden is on the plaintiff to offer evidence sufficient to prove plaintiff's alleged damages.

Donald D. Schneider of Simmons & Schneider, P.C., Fremont, for appellant.

H.E. Hurt, Jr. of Hurt & Gallant, Scribner, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

CAPORALE, Justice.

Following a bench trial, plaintiff-appellee, Howells Elevator, Inc., obtained a judgment for damages allegedly caused by the negligence of defendant-appellant, Stanco Farm Supply Co., Inc. Stanco Farm Supply assigns as error, among other things, the district court's findings (1) that Stanco Farm Supply is liable to Howells Elevator and (2) that Howells Elevator proved damages. As the record sustains those assignments of error, we reverse and remand with the direction that the cause be dismissed.

Howells Elevator operates grain elevator and storage facilities in Howells, Nebraska, and near Dodge, Nebraska, while Stanco Farm Supply hauls grain as part of its business operation. The occurrence which precipitated this action took place on October 13, 1986, in Howells Elevator's 240- by 450-foot grain storage facility near Dodge, when the rear wheels of Stanco Farm Supply's semitrailer truck ran over and damaged one of Howells Elevator's "under-truck" grain conveyors.

An understanding of the case requires a description of the method Howells Elevator then used to unload corn as it arrived at its location near Dodge. Trucks were maneuvered into such a position that a Howells Elevator employee could use a "Bobcat" to place an under-truck grain conveyor under the trailer portion of trucks loaded with corn. The corn was then emptied onto the under-truck conveyor from trapdoors located at the bottom of the hoppers on the floor of the trailer. The under-truck conveyor then moved the corn to another, larger conveyor, which in turn moved the corn to its place of storage.

The operation required that the truck be correctly positioned to facilitate movement of the corn from the under-truck conveyor to the larger conveyor, and such positioning allowed a tolerance of about 2 feet to the north and south and 3 to 4 feet to the east and west. When positioning a truck for unloading, one of Howells Elevator's employees would direct the driver while another of its employees would move the under-truck conveyor under the truck to determine whether the truck was in the proper position for unloading. While positioning a truck required a coordinated effort among the three workmen, the Howells Elevator employee directing the truckdriver did not direct the Bobcat operator; the Bobcat operator simply reacted to the instructions given to the truckdriver and to said driver's actions.

On the date of the occurrence, Howells Elevator's employee David Bartosh was guiding trucks into position to be unloaded, Randall Miller was operating Stanco Farm Supply's corn-filled truck, and Paul Uher, another of Howells Elevator's employees, was operating the Bobcat used to move an under-truck conveyor into position under the hopper of Stanco Farm Supply's truck. In accordance with Howells Elevator's system, Miller maneuvered Stanco Farm Supply's truck so that it was facing west inside the grain storage building. Because the truck was not properly positioned for unloading, Bartosh directed Miller to reposition it.

The record indicates that Miller, with Bartosh's guidance, made at least three attempts to place Stanco Farm Supply's truck in a proper position for unloading. Bartosh testified that after the second attempt, Miller "got really angry" and "started driving recklessly." Bartosh further testified he determined that Miller was angry "[b]y the way he dumped the clutch out; the truck's smoke would come out, the exhaust; he was driving too fast," and testified that the cab of the truck would "twist from dumping the clutch fast." Uher corroborated what Bartosh had stated, testifying that Miller "was getting angry and reckless" and that Miller was "jerking the clutch and speeding ahead fast, smoke coming out of the exhaust from the accelerator." Contrary to the testimony of Bartosh and Uher, Miller testified that he neither became angry nor drove recklessly. When asked about exhaust coming from Stanco Farm Supply's truck, Miller stated: "It's a diesel; it smokes."

After at least three attempts to position the truck for unloading, it was still not in its proper position. Bartosh then instructed Miller to move the truck forward but did not tell him how far to move forward and did not explain the tolerance or margin within which Miller was required to position his truck. Miller followed Bartosh's command, but after Miller had moved the truck forward about 5 feet, its rear wheels ran over the under-truck conveyor. Bartosh testified that "we tried pulling the conveyer out with the bobcat, but the truck was moving too fast. The truck was moving west and the conveyer was being moved west. The truck caught up with the conveyer and ran over the--on top of the conveyer." Bartosh testified that he yelled " 'hold it' " the instant before the truck wheels hit the conveyor, but Miller "was on it, over it and probably five to ten feet past it before he even got stopped."

Howells Elevator's petition alleged that the damage to its grain conveyor was caused by Stanco Farm Supply's negligent failure to (1) keep a reasonable and proper lookout, (2) keep the truck under reasonable control, (3) operate the truck at a reasonable and prudent speed, and (4) stop before hitting the conveyor. Stanco Farm Supply's answer denied any negligence on its part and affirmatively alleged that the negligence of Howells Elevator's own employees barred any recovery by Howells Elevator. Stanco Farm...