Iepson v. Noren, 51355.
| Decision Date | 07 August 1981 |
| Docket Number | No. 51355.,51355. |
| Citation | 308 NW 2d 812 |
| Parties | Wayne IEPSON, Appellant, v. Randy NOREN, et al., Respondents, Vernon Lehman, Defendant. |
| Court | Minnesota Supreme Court |
Charles C. Halberg, Burnsville, for appellant.
Lommen, Nelson, Sullivan & Cole, Mark N. Stageberg and Wells H. Anderson, Minneapolis, for respondents.
Considered and decided by the court without oral argument.
This is an appeal in an action arising out of a head-on collision between a motor bike driven by the appellant and a pickup truck. There were four defendants in the lower court action: one owned the truck; one loaned the truck; one drove the truck; and one owned the land on which the collision took place. The action against the landowner, Victor Lehmann, was settled prior to trial.
The case was tried to a jury on December 17-19, 1979, in Anoka County District Court. At the close of evidence, the court directed a verdict for the three remaining defendants, concluding that there had been a primary assumption of risk by the plaintiff and that the plaintiff had been more negligent than each and all of the defendants.
The district court subsequently denied plaintiff's motion for a new trial, and entered judgment dismissing plaintiff's action and awarding $702.75 to the truck owner, Rehbein Transit Inc., on its counter-claim. From the judgment and the order denying a new trial, the plaintiff motor-bike driver appeals to this court, requests a reversal of the judgment and order, and asks that the case be remanded for a new trial. We agree and reverse.
Most of the crucial facts are in dispute. We present the facts here in the light most favorable to appellant in order to facilitate a determination of whether appellant's negligence, as a matter of law, exceeded that of each and all of the respondents.
At about 7:30 p. m. on September 2, 1975, appellant, 16-year-old Wayne Iepson, went for a drive on his motor-bike, a four-speed, 125 cc Kawasaki, specifically designed for riding on dirt trails. Throughout appellant's neighborhood in Lino Lakes there are interconnecting trails. Some of the trials traverse a 34-acre, densely wooded plot owned by Vernon Lehmann. Appellant and other youths often rode their motor-bikes on the trails traversing Lehmann's property. Iepson testified that he had once asked and received oral consent from Mr. Lehmann's son, Kenny, to ride those trails.
On this particular evening after appellant rode about for a half hour (or until about 8:00 p. m.) he noticed, and pulled over to talk to, some of his high school friends at a campsite in a little clearing in the woods. During the conversation one friend, Donny, asked and received permission from Iepson to take a ride on the motor-bike. Donny rode south and then turned west and went by the house owned by the Rehbeins. There the Rehbeins' German Shepherd chased after the motor-bike, and Donny took a spill on the bike on the Rehbeins' driveway. Donny rode the bike back to the campsite, and told Iepson about the spill and asked him to check over the bike.
The time was then between 8:30 and 8:45 p. m.; it was late twilight or dusk in the woods, and only a little less dark at the Rehbeins' house where 16-year-old respondent Randy Noren, and his friend, Todd Truman, had decided they wanted to drive a pickup truck into the woods. They asked their older friend, respondent Reid Rehbein, a 27-year-old employee of respondent Rehbein Transit, Inc., if they could borrow the company-owned, new pickup truck that he used on and off work. Reid consented.
The two boys, with Noren driving, headed east in the pickup truck, taking what appears to have been the same route as Donny took only a short time earlier when he returned to the campsite after his spill. Their testimony on their reasons for wanting to go into the woods and what they intended to do there is internally inconsistent and is contradicted by a statement made by one of them to a police officer soon after the accident in controversy. Truman testified that they went out to look for firewood that had been cut into logs and arranged in several separate piles. He testified that the wood piles were 10 to 25 feet off the trails and into the woods. Truman further testified that he and Noren were looking for one certain pile. When asked repeatedly to explain what was special about the log pile they were supposedly seeking, Truman gave evasive and inconsistent answers that a jury could reasonably have found to lack credibility.
In the supposed search for a certain pile of logs, the youths drove due east, turned, went due north a while and then stopped. At that point respondent Noren turned off the lights. Noren put the truck in park, but left the engine running. Truman then left the truck to find the special pile of logs and, though it was dark, made his search without aid of the truck's lights. One glance sufficed in this search; the first pile he spotted in the dark was not special but, for no reason, that had ceased to be important. He then rejoined Noren in the cab of the truck.
Noren and Truman then chatted for a minute in the truck. They were parked approximately fifty yards south of the campsite where local youths often gathered. Truman testified that the windows of the truck were up. Noren testified that the windows were down. Both testified that they heard nothing and saw nothing except, for an instant, there was a blur just in front of the truck and an engine roar, and then the sound of an impact on the passenger side of the truck as the collision occurred.
In Iepson's version, when his friend Donny returned the bike, Iepson checked it, tried the light, found it would not go on, and decided to ride home without the light. He started the bike and headed south on the trail. As he was shifting gears from second to third, at a speed he estimated as between 20 and 30 miles per hour, he saw a blob appear in front of him, traveling toward him; too late he realized it was a truck moving toward him. He tried to avoid it, but collided with it.
One of the youths at the campsite, Shane Miller, testified that he had watched Iepson ride off. He lost sight of him momentarily in the dark, but never ceased hearing the engine of the dirt-bike. Suddenly, he saw the dirt-bike's brakelights go on, heard a collision and scream, and then saw a truck's brakelights go on.
After the collision, the youths at the campsite ran down to the place of the accident, arriving only a few moments after it occurred. Truman and defendant Noren got out of the truck and headed back to the Rehbein home, where they informed Reid Rehbein that there had been an accident. Rehbein accompanied them back to the site of the accident. When the...
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