Mueller v. Silver Fleet Trucking Co.

• Decision Date: 07 June 1949
• Citation: 254 Wis. 458,37 N.W.2d 66
• Parties: MUELLER et al. v. SILVER FLEET TRUCKING CO. et al.
• Court: Wisconsin Supreme Court

254 Wis. 458

37 N.W.2d 66

MUELLER et al.

v.SILVER FLEET TRUCKING CO. et al.

Supreme Court of Wisconsin.

April 12, 1949.

Rehearing Denied June 7, 1949.

Appeal from a judgment of the Circuit Court for Milwaukee County; August E. Braun, Judge.

Modified and affirmed.

FRITZ, FAIRCHILD and MARTIN, JJ., dissenting.This action was begun on May 10, 1945, by Agnes R. Mueller and Liberty Mutual Insurance Co., plaintiffs, against The Silver Fleet Trucking Company and its insurance carrier, the Preferred Accident Insurance Company of New York, defendants, to recover damages on account of the death of Elmer H. Mueller, husband of the plaintiff Agnes R. Mueller, alleged to be due to the negligence of the Silver Fleet Trucking Company, hereafter referred to as the Trucking Company.

The Trucking Company was engaged in hauling coal by truck for the Wisconsin Ice & Coal Company, delivering it to the Veterans Administration, at Wood, Wisconsin. The coal was to be delivered to the so-called hopper room. The approach to the hopper room consisted of a bituminous macadam surfaced road with a gentle incline of two inches in ten feet. The hopper room faced the south and the door to the hopper room was on the south side. The door was ten feet nine inches in width, and was twelve feet and one-quarter inches in height when opened. The room was oblong in shape eleven feet four inches in width with a depth of twenty-one feet six inches. The floor of the hopper room was of reinforced concrete and was level. In the concrete floor there was a grating so constructed that the coal would fall into the hopper below. The grate was eight feet by eight feet square. The grate was in four sections each of which was two feet wide and eight feet long. Each of the four sections weighed approximately 400 pounds. In the bottom of the grate were three inch openings through which the coal dumped or shoveled on the grates could drop into the coal hopper below. The practice was to have the coal dumped on the grates so that it would fall by gravity to the hopper below.

The deceased Elmer H. Mueller was employed by the Wisconsin Ice & Coal Company, hereafter referred to as the Coal Company, for the purpose of seeing that the coal dropped through the grates into the hopper, and to clean up the coal which spilled so that the trucks would not be required to spend too much time at the hopper room.

The truck in question was being driven on January 11, 1944, by one Kagel. He had made two deliveries of coal to the Soldiers Home on January 10th, and one delivery on January 11th previous to the one in question. The truck weighed 8,550 pounds and at the time in question the load weighed 13,950 pounds, a total of eleven and one-quarter tons.

When Kagel arrived for the purpose of unloading the truck he found another truck unloading coal on the grates. Mueller was in the hopper room punching the coal through the grates. After the preceding truck left, Kagel backed his truck to the hopper room very slowly. He was watching his left rear wheels and had the left door of his cab open. Mueller was standing between the guard and the east wall with a piece of four by four in his hand, to be used in blocking the truck.

Kagel testified as follows: ‘On my prior deliveries I had been in the room where the coal was delivered and was familiar with the set-up. * * * It was my intention to stop before the truck got onto the grate, and I had no intention of backing on to the grate. I was watching the truck carefully for the purpose of stopping it before it hit the grate. * * * There was some play in the differential or rear universal joint at the time of the accident. That condition existed on the day of the accident. I was familiar with the fact that the truck would roll some after the brakes were applied, and I knew that at the time I backed up. I applied my brakes to stop the truck before it got on the grate, but it rolled on to the grate.’

As the truck rolled on to the grate the grate buckeled, the truck tipped to the east, Mueller was caught between the body of the truck and the east wall and fatally injured.

The case was tried to the jury. The jury found (1) that the driver of the truck was negligent in backing the same on to the grates, (2) that such negligence was an efficient cause of the death of Elmer H. Mueller, (3) that Elmer H. Mueller was negligent in placing himself in the position he was when he was killed, and (4) that such negligence was an efficient cause of his death, attributed 90% of the negligence to the driver of the truck and 10% to the deceased Elmer H. Mueller, assessed the damages to the plaintiff because of the death of her husband at $35,000, and for the loss of society and companionship $5,000. Judgment was entered for the sum of $13,680 and costs, in all $13,933.14, from which the defendants appeal. Additional facts will be stated in the opinion.

Dougherty, Arnold & Waters, of Milwaukee, for appellants.

Otjen & Otjen, of Milwaukee, for respondents.

ROSENBERRY, Chief Justice.

Defendants contend that the evidence is not sufficient to sustain the jury's finding as to the negligence of the driver of the truck. We have carefully reviewed the evidence and are of the opinion that the evidence was sufficient to sustain the jury's findings. Kagel knew that Mueller was on the inside of the hopper room. He knew that the grates were not intended to hold a weight of eleven and a quarter tons; he had carefully avoided backing the truck on to the grates on previous deliveries and was well acquainted with the entire situation. Some attempt is made to excuse Kagel on the ground of play in the differential. There was nothing to indicate to Mueller that Kagel could not stop the truck on this occasion as he had on previous occasions. Kagel on the other hand was aware of the defect, if any, and if Mueller was running any risk because of it he should have warned Mueller. We conclude that the jury could properly find from the evidence that Kagel was not in the exercise of ordinary care under the circumstances.

During the course of his examination Kagel was asked the following question:

‘Now, in the backing up process you alone control the truck, don't you? A. I did.

‘Q. Nobody else had control of your truck. You had full control? A. This man Mueller told me he would place the block.’

He had testified in response to a previous question that Mueller had blocked the truck at the time of a former delivery after the truck had stopped. The trial court sustained an objection to a question by which the defendants sought to bring out the entire conversation between Kagel and Mueller. There was no offer of proof and there is nothing to indicate whether the evidence excluded would have been material. It is considered that in sustaining the objection no prejudicial error was committed.

It is next contended that the jury was not properly instructed. The following instruction is complained of: ‘In determining your answer to this question you will consider the nature and construction of the grates over the coal hopper, the weight of the truck, together with the load of coal contained in it; the condition and position of the grates as the driver backed his truck upon the grates; the fact that the truck driver intended to back his truck only up to the grates and not on them; and the further fact as to whether or not he ought to have anticipated in the exercise of ordinary care that by backing his truck upon the grates there was any danger of disturbing the position of the grates and also the position of the truck if the position of the grates should be disturbed.’

The language complained of is as follows: ‘the fact that the truck driver intended to back his truck only up to the grates and not on them.’

The fact that Kagel on previous occasions had not backed the truck on to the grates and did not intend to do so this time was certainly a fact to be considered in determining whether he was negligent. It is considered that the instruction, taken as an entirety, was proper.

On behalf of defendants it is further contended that the jury assessed a grossly disproportionate amount of negligence against the defendants. The jury found the deceased negligent in placing himself in the position he was when he was killed, and found that his negligence was 10% of the negligence which caused his death. The position of the deceased before the accident and the place where his body was found after the accident establishes the fact that he was in a safe place and not in a place of danger had the truck stopped where the driver intended to stop it and where trucks had been stopped on prior occasions.

The place where Mueller was standing became a place of danger due solely to the negligence of the truck driver. It does not appear from the record that the deceased consciously placed himself in a place known to be dangerous. We hold the proportion of negligence attributable to Mueller, as found by the jury, cannot be disturbed.

On a motion to review the plaintiffs seek to have the judgment modified by changing the words and figures ‘Thirteen Thousand Six-hundred Eighty ($13,680.00) Dollars' therein to ‘Fifteen Thousand Two-hundred ($15,200.00) Dollars,’ and by changing the figures ‘$13,933.14’ to ‘$15,453.14.’ This motion raises a question which is, so far as we are aware, one of first impression. The jury apportioned the negligence 90% to the driver of the truck and 10% to the deceased, Elmer H. Mueller, and assessed damages as follows:

(a) For burial expenses of the deceased Elmer H. Mueller, by the court, $200.

(b) For the pecuniary loss sustained by the plaintiff because of the death of her husband, $35,000.

(c) For the loss of the society and companionship of her husband, $5,000.

The jury did not complete the verdict as required by sec. 331.045, which provides: ‘Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for...