Moore v. Moriarty

• Decision Date: 04 February 1981
• Docket Number: No. 3-1079A267,3-1079A267
• Citation: 415 N.E.2d 779
• Parties: Neil E. MOORE, Jr., Defendant-Appellant, v. John L. MORIARTY, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 779

415 N.E.2d 779

Neil E. MOORE, Jr., Defendant-Appellant, v. John L. MORIARTY, Plaintiff-Appellee.

No. 3-1079A267.

Court of Appeals of Indiana, Third District.

Feb. 4, 1981.

Tom F. Hirschauer, Logansport, for defendant-appellant.

Frederick E. Rakestraw, Brown, Brown & Rakestraw, Rochester, for plaintiff-appellee.

GARRARD, Judge.

Appellant, Neil E. Moore, Jr., appeals from a judgment ordering him to pay $22,500 to the appellee, John L. Moriarty, for damages resulting from personal injuries sustained by Moriarty while employed by Moore. Trial was conducted before the bench, and special findings and conclusions of law were entered. Moore's challenges to the trial court's findings may be summarized as follows:

1. Whether the court erred in finding that Moore was negligent in his failure to brake the truck prior to its pulling the tractor over; and

2. Whether the damages awarded were excessive.

We affirm.

Facts

On November 29, 1974, Moriarty was employed by Moore as a farm laborer. Moore owned a Ford truck which was loaded with grain, but was not operable at that time. Since it was imperative that the grain be delivered to an elevator, the parties decided to pull the loaded truck to a nearby elevator by the use of a tractor. Working together, they attached the truck to the tractor by means of a 16 to 20 foot log chain such that the tractor could pull the truck. Since the two vehicles were joined only by a collapsible chain, stopping was accomplished by the tractor decelerating and the truck braking to keep the chain tight. The parties proceeded to the elevator with Moriarty driving the tractor and Moore steering and braking the truck.

On returning from the elevator, the tractor struck a chuckhole causing damage to the steering mechanism and leaving Moriarty unable to control it. Although Moriarty was able to keep the tractor on the road for approximately two to five seconds, the tractor soon veered to the right off the roadway into an embankment. Before Moore was able to stop the truck, it rolled past the tractor, pulling the chain taut such that the tractor overturned. Moriarty suffered a dislocated right hip and injuries to his knee as a result of either being thrown from the tractor or jumping from it as it turned over.

As a result of this accident, Moriarty was hospitalized for twelve days although no surgery was performed and his hip was not placed in a cast. He was on crutches for two months, continued to have constant pain in his right hip and knee, and was unable to work. In March 1975, Moriarty again dislocated his hip when he fell while attempting to climb a four foot wire fence to get to a family gathering in a nearby woods. After this accident, he underwent surgery followed by a lengthy rehabilitation involving complete bed rest and several months on crutches. He suffered severe disability for approximately one and a half years and at the time of trial still did not have full use of his right leg.

I.

Moore bases his assertion that the court erred in finding him negligent upon three grounds. First, that the evidence does not support the court's finding that he was negligent in failing to brake the truck, but rather the record indicates the accident was caused by the truck hitting a chuckhole. Second, that the doctrines of "common knowledge" and assumption of the risk operate to absolve Moore of any liability for the accident. Third, that the court held Moore to an unreasonably high degree of care in light of the doctrine of sudden emergency.

Moore's initial claim questions the sufficiency of the evidence to support the court's findings. We remind appellant that this court can neither weigh the evidence nor determine credibility of witnesses. Rather, we are limited to a consideration of only the evidence and reasonable inferences therefrom which support the judgment of the trial court. Kruse, Kruse & Miklosko v. Beedy (1976), 170 Ind.App. 373, 353 N.E.2d 514. Indiana Rules of Procedure, Trial Rule 52(A) mandates that a trial court's judgment be left undisturbed unless we conclude that the court's findings are "clearly erroneous." Such a conclusion may be reached only when on the entire record the reviewing court is left with the definite and firm conviction that a mistake has been committed. Smith v. City of South Bend (1980), Ind.App., 399 N.E.2d 846; Arnold v. Dirrim (1979), Ind.App., 398 N.E.2d 442.

The nature and cause of the accident are clearly questions for the trier of fact. The trial court concluded that while the tractor may have struck a chuckhole damaging its steering mechanism, the accident occurred as a result of Moore allowing the truck to run past the tractor, thus tightening the chain and causing the tractor to overturn. There is ample evidence to support this conclusion, and it is not our role to reevaluate the testimony in an effort to draw our own conclusions.

Second, Moore relies on the case of Hunsberger v. Wyman (1966), 247 Ind. 369, 216 N.E.2d 345, for the proposition that the parties, working together, had the identical knowledge and opportunity to discover and avert the danger, and that therefore it is not proper to hold Moore to have been negligent and Moriarty to have been innocent. In Hunsberger an employer and his employee were attempting to remove the flat bed of a truck from the truck's chassis. Having cut the bed from the chassis, the plaintiff employee thought he could detach the bed completely by hitting it with an axe. His action caused the truck bed to fall over upon him. The plaintiff urged that the defendant employer was negligent in failing to provide a safe place to work and proper tools for the job, and in omitting to take any action which could have prevented the accident, such as backing a tractor against the truck bed or shoring it up.

The Hunsberger court concluded that, under the circumstances, both parties had the identical knowledge and opportunity for knowledge, as well as the same duty to exercise reasonable care in appreciating and avoiding the dangers related to their activity. The court thus reasoned that since both parties were performing the same task, the employer could not be negligent while his employee, who was fully capable of forming an intelligent judgment as to the risks related to hitting the truck bed with an axe, was not negligent.

However, in the instant case we lack the essential factor necessary to...