Krehnke v. Farmers Union Co-op. Ass'n

• Decision Date: 21 December 1977
• Docket Number: No. 41246,CO-OPERATIVE,41246
• Citation: 199 Neb. 632,260 N.W.2d 601
• Parties: Helmuth KREHNKE, Appellant, v. FARMERS UNIONASSOCIATION, a cooperative, Appellee, Impleaded with Sand Construction Company, a corporation, Appellant. Leola KREHNKE, Appellant, v. FARMERS UNIONASSOCIATION, a cooperative, Appellee.
• Court: Nebraska Supreme Court

Page 601

260 N.W.2d 601

199 Neb. 632

Helmuth KREHNKE, Appellant, v. FARMERS UNION CO-OPERATIVE ASSOCIATION, a cooperative, Appellee, Impleaded with Sand Construction Company, a corporation, Appellant.

Leola KREHNKE, Appellant, v. FARMERS UNION CO-OPERATIVE ASSOCIATION, a cooperative, Appellee.

No. 41246.

Supreme Court of Nebraska.

Dec. 21, 1977.

Syllabus by the Court

1. Where contributory negligence is pleaded as a defense and there is no competent evidence to support it, it is prejudicial error to submit to the jury issues involving contributory and comparative negligence. Where, however, different minds may reasonably draw different conclusions or inferences from the evidence, or if there is a conflict therein, the issues of negligence and contributory negligence are for the jury.

2. One who is capable of understanding and discretion, who fails to exercise ordinary care and prudence to avoid open, obvious defects and dangers, is negligent or contributorily negligent. Negligence must be measured against the particular set of facts and circumstances which are present in each case.

3. Where there is a conflict in the evidence, this court will presume that the controverted facts were decided in favor of the successful party, and the judgment will not be disturbed on appeal unless it is clearly wrong.

4. In using an elevator a person is required to exercise reasonable care for his own protection, and ordinarily the question of contributory negligence is for the jury.

5. Where instructions to the jury correctly state the law, it is not error for the trial court, in the absence of a request for a more specific instruction, to fail to give a more elaborate one. Failure to object to instructions after they are submitted to counsel for review precludes raising an objection to the instructions on appeal.

6. The violation of a safety regulation, established by statute or ordinance, is not negligence as a matter of law, but is evidence of negligence which may be considered in connection with all the other evidence in the case in deciding that issue.

Nelson, Harding, Yeutter, Leonard & Tate and Kenneth Cobb and Scott E. Daniel, Lincoln, for appellant.

Richard P. Garden of Hutton & Garden, P. C., Norfolk, Cassem, Tierney, Adams & Gotch and Terry Grennan, Omaha, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON and BRODKEY, JJ.

BRODKEY, Justice.

In separate petitions filed in the District Court for Colfax County, plaintiffs Helmuth Krehnke and his wife Leola, alleged that Helmuth had suffered personal injuries and other damages proximately caused by the negligent failure of defendant Farmers Union Co-Operative Association to properly inspect and maintain an electric manlift in its grain elevator. Sand Construction Company, employer of Helmuth, was named an additional defendant for subrogation purposes. We shall hereinafter refer to Helmuth, one of the appellants herein, as plaintiff, and to Farmers Union Co-Operative Association, appellee, as defendant. Plaintiff specifically alleged that defendant's failure to properly inspect and maintain the lifting mechanism and safety brake of the manlift caused it to plummet to the bottom of its shaft when plaintiff was riding therein. Plaintiff prayed for special and general damages. Defendant admitted that plaintiff had been injured in an accident in its manlift, but denied plaintiff's allegations of negligence, and alleged that his injuries were proximately caused or contributed to by the negligence of the plaintiff in a degree more than slight. Specifically, defendant alleged that plaintiff failed to inquire about or determine the lifting capacity of the manlift before operating it; and that plaintiff operated the manlift when he knew or should have known that it was loaded beyond its lifting capacity.

The case was submitted to a jury on both the plaintiff's allegations of negligence and defendant's allegations of contributory negligence. The jury entered a verdict in favor of the defendant. Judgment was entered on the verdict, and plaintiff has appealed to this court. Although plaintiff sets forth 15 assignments of error in his brief, the assignments fall into 4 categories which may be summarized as follows: (1) The trial court erred in submitting the issue of contributory negligence on the part of the plaintiff to the jury; or, in the alternative, failed to instruct the jury with adequate specificity as to a passenger's duty of care to check the lifting capacity of a manlift and to the loading on a manlift; (2) the trial court erred in failing to instruct the jury with adequate specificity in regard to plaintiff's allegations of negligence on the part of the defendant; (3) the trial court erroneously admitted into evidence the opinion testimony of a defense witness concerning the cause of the accident; and (4) the trial court should have directed a verdict in favor of the plaintiff and submitted only the issue of damages to the jury. We affirm the judgment of the District Court.

The facts relevant to this appeal are as follows. The manlift in question was installed in defendant's elevator approximately 20 years ago and, as its name implies, was primarily designed to carry workmen to the top of the grain elevator so that they could direct grain into the appropriate part of the elevator. The car of the manlift consisted of a wire cage on three sides, the fourth side remaining open. The interior floor space of the cage was 2 feet square. It was an electric manlift, and the lifting mechanism was located at the top of the shaft. A counterweight was attached to the end of the cable which was used to raise and lower the manlift. The capacity of the manlift was estimated by plaintiff's expert witness to be about 300 pounds, but he also stated that it would take 171 pounds more than the weight of the plaintiff (235 pounds) and the weight of the cage itself (270 pounds) to cause the counterweight to slide, that is to say, to cause the manlift to be overloaded to the extent it would fall. The manlift had an automatic safety brake, which was activated by a rope and governor. If the manlift would begin to fall too rapidly, a clamp on the rope would cause "dogs" extending from the cage to catch or imbed themselves on wooden rails which were located on both sides of the manlift shaft.

Plaintiff was an employee of a construction company which was engaged to install certain equipment on the top of defendant's grain elevator. Plaintiff was an experienced workman in this field, and was familiar with grain elevators and their operation. He was also familiar with the operation of manlifts such as the one in this case. In carrying out the job at defendant's elevator, plaintiff regularly used the manlift to transport himself to the top of the grain elevator, although he apparently did not use the manlift to transport equipment and materials. Plaintiff acknowledged that the manlift worked properly prior to the accident.

On October 7, 1971, the installation on the elevator having been completed, plaintiff and a coworker were removing equipment from the top of the elevator. Plaintiff admittedly was using the manlift to take some equipment to the ground, and testified that he placed one oxygen bottle and one acetylene bottle in the manlift, sent the manlift to the ground floor, and "yelled down" for someone to remove the two bottles. Plaintiff stated that the manlift returned to the top, the bottles were gone, and that he then entered the cage with a portable welder and a small box of tools. As he started to descend, plaintiff heard a loud pop, a screech, and then the manlift plummeted to the bottom of its shaft.

Ivan Backes, an owner of the company which employed the plaintiff, stated that just prior to the accident he had attempted to use the manlift to go to the top of the grain elevator, but that it had stopped after rising about 10 feet. Backes descended to the ground floor, and went outside to call to the plaintiff. Backes stated that he could not remember seeing oxygen or acetylene bottles on the manlift when he attempted to use it, or after the accident occurred. He also did not remember seeing anyone remove such bottles from the manlift.

Roger Morris, the manager of the defendant elevator company, stated that he saw Backes get on the manlift shortly before the accident, and that the oxygen and acetylene bottles were on the manlift at that time. When the manlift stopped after rising several feet with Backes and the bottles in it, Morris told Backes that there was too much weight on the manlift. Backes then returned to the ground, and Backes and Morris went outside to call to the plaintiff. Plaintiff's coworker replied that plaintiff was already on his way down. When Morris and Backes went back inside the grain elevator, the manlift cage was no longer on the ground floor, and the accident occurred shortly thereafter. Morris could not remember seeing the oxygen and acetylene bottles on the ground floor, and said no one removed them from the manlift.

An expert witness testifying for the plaintiff expressed the opinion that the accident was caused by a bearing block shifting, which in turn caused gears controlling the manlift cable to become disengaged. He stated that a bolt, the purpose of which was to hold the block in place, was missing, and that two set screws designed to secure the bearing in place were not fulfilling that function. This expert also stated that the safety brake was not in proper condition, although his testimony was somewhat inconclusive on this point.

The defendant, on the other hand, presented evidence that the manlift had been periodically checked before the accident, that it had worked properly up to the time of the accident, and that it was designed only to lift people, not freight. Defendant's expert witness, over the plaintiff's objection of inadequate foundation, expressed the opinion that the accident was...