Nelson v. Nelson Cattle Co.

Citation513 N.W.2d 900
Decision Date30 March 1994
Docket NumberNos. 18114,18128,s. 18114
PartiesMilton E. NELSON and Sandra Nelson, Plaintiffs and Appellees, v. NELSON CATTLE COMPANY, Defendant and Appellant.
CourtSupreme Court of South Dakota

Jack S. Theeler of Morgan, Theeler, Cogley & Petersen, Mitchell, for plaintiffs and appellees.

Mark V. Meierhenry and Sabrina Meierhenry of Danforth, Meierhenry & Meierhenry, Sioux Falls, for defendant and appellant.

GORS, Circuit Judge.

Milton and Sandra Nelson sued for damages arising out of injuries incurred when Milton Nelson fell from a grain bin he was moving for Nelson Cattle Company. A jury returned a verdict of $505,000.00 for Milton Nelson and $250,000.00 for Sandra Nelson. Nelson Cattle Company appealed and Milton and Sandra Nelson filed a notice of review. We affirm in part and reverse and remand in part.

FACTS

Ted Nelson, Sr., has three sons, Ted, Jr., Milton (plaintiff) and Calvin. Ted Nelson, Jr., has two sons, Steve, who was 15, and Mark, who was 14, at the time of the incident. Ted Nelson, Sr., and Ted Nelson, Jr., are the stockholders of Nelson Cattle Company, which farms 3,500 acres and feeds 2,000 cattle. At the time of his injury, Milton Nelson was 37 years old and in excellent health. He had a wife, Sandra Nelson, a baby daughter and a stepson. Although Milton Nelson was once a stockholder in Nelson Cattle Company, he moved to town several years ago and ran his own real estate and auction business in Mitchell. However, he still performed unpaid work at the farm on a regular basis.

On July 5, 1985, Milton and Calvin Nelson and Finn Tang, a visitor from Denmark, moved a portable grain bin from the Mike and Laska Schoenfelder farm ten miles to the Nelson Cattle Company farm located on the Mt. Vernon to Woonsocket road. The overhead wires were too low to get out of Schoenfelder's yard. Mike Schoenfelder then used his tractor to pull the bin through an alfalfa field to a section line road where the wires did not interfere. Milton Nelson then pulled the bin with his pickup to the Nelson Cattle Company farm.

In anticipation of difficulty with overhanging wires, Ted Nelson, Jr., had fourteen year old Mark Nelson bolt a 9-foot long two-by-four and a 16-foot long two-by-four together to make a 25-foot long tool with another board at the end forming a "T". Nails were pounded into the ends of both arms of the "T". The tool was then used to catch and lift overhanging wires so the 24-foot grain bin could pass underneath. Milton Nelson drove and Calvin Nelson and Finn Tang used the tool to lift wires. Nevertheless, the bin touched at least one overhanging highline wire on the journey, interrupting electric service to a neighboring farm.

On October 5, 1985, Milton, Steve and Calvin Nelson moved the bin back to the Schoenfelder farm. Steve Nelson drove a Nelson Cattle Company pickup. Although a different route was used to avoid overhanging wires, the wooden tool was taken as a precaution. Upon reaching Schoenfelder's farm, the same wire that had prevented their egress in July blocked their ingress in October. Steve and Milton Nelson tried to lift the wire but the tool broke about nine feet from the end with the "T". Milton then climbed upon the bin and Steve drove the pickup pulling the bin under the wire while Milton tried to hold the wire up with the broken tool. Milton fell from the bin. Steve did not see the fall, Milton did not recall the fall and Calvin was not able to testify 1.

Milton Nelson incurred $120,380.35 in medical expenses (60 days hospitalization and 17 surgeries) and permanent brain damage, permanent loss of normal vision and permanent double vision, severe motor and speech impairment and emotional and psychological problems resulting in 100% disability.

Milton and Sandra Nelson sued Nelson Cattle Company in September of 1988. A jury trial was held from August 28 to September 4, 1992. At the close of the evidence, Nelson Cattle Company moved for a directed verdict claiming lack of negligence, contributorily negligence and assumption of the risk. The trial court denied the motions and the jury returned a verdict of $505,000.00 for Milton Nelson and $250,000.00 for Sandra Nelson. The trial court entered a judgment for Milton and Sandra Nelson on the verdict and taxed $11,453.36 disbursements in favor of Milton and Sandra Nelson.

Nelson Cattle Company appealed the trial court's denial of its motions for directed verdict on lack of negligence, contributory negligence and assumption of the risk and the trial court's taxation of the compensation and expenses paid by the Nelsons to their expert witnesses in excess of the statutory witness fees. Milton and Sandra Nelson filed a notice of review of the trial court's refusal to give their requested instructions on ultrahazardous activity and res ipsa loquitur.

STANDARD OF REVIEW
NELSON CATTLE COMPANY'S MOTION FOR DIRECTED VERDICT

In Savold v. Johnson, 443 N.W.2d 656, 658-59 (S.D.1989), this Court said that "[w]hen faced with a motion for directed verdict, we must accept as true the evidence presented by the nonmoving party and indulge all legitimate inferences in favor of the party against whom the motion is brought." Kreager v. Blomstrom Oil Company, 379 N.W.2d 307 (S.D.1985); Budahl v. Gordon & David Associates, 323 N.W.2d 853 (S.D.1982); Myers v. Quenzer, 79 S.D. 248, 110 N.W.2d 840 (1961). "We must determine if there is any substantial evidence to sustain the cause of action. If such evidence exists as would allow reasonable minds to differ, the case must go to the jury." Haggar v. Olfert, 387 N.W.2d 45, 49 (S.D.1986); Sabag v. Continental South Dakota, 374 N.W.2d 349, 354-55 (S.D.1985); Lytle v. Morgan, 270 N.W.2d 359, 361 (S.D.1978).

In contrast to appeals of trials to the court, Jones v. Kartar Plaza Ltd., 488 N.W.2d 428, 429 (S.D.1992), where the Supreme Court reviews findings of fact under the clearly erroneous standard, on appeal of a jury verdict, the Supreme Court is required to view the evidence and all reasonable inferences from the evidence in the light most favorable to the verdict winner and conflicting evidence is to be resolved in favor of the verdict. Marnette v. Morgan, 485 N.W.2d 595, 599 (S.D.1992). The Supreme Court reviews the record to determine whether there is substantial evidence to allow reasonable minds to differ; the court does not weigh evidence and substitute its judgment for that of the jury. Westover v. East River Elec. Power, 488 N.W.2d 892, 896 (S.D.1992). In reviewing the sufficiency of the evidence to support a verdict, the court does not weigh conflicting evidence or pass upon the credibility of witnesses. Musch v. H-D Co-op., Inc., 487 N.W.2d 623, 626 (S.D.1992); State v. Hurst, 507 N.W.2d 918, 923 (S.D.1993). "These functions lie solely within the province of the jury as ultimate trier of fact." State v. Burtzlaff, 493 N.W.2d 1, 4 (S.D.1992).

DISCUSSION

Ordinarily, questions of negligence, contributory negligence and assumption of the risk are for the jury in all but the rarest cases, Westover v. East River Elec. Power, supra, 488 N.W.2d at 896, so long as there is evidence to support the issues. Gerlach v. Ethan Coop Lumber Ass'n, 478 N.W.2d 828, 830 (S.D.1991). Breach of duty and proximate cause, Zens v. Chicago, Milwaukee, St. Paul & Pac., 479 N.W.2d 155, 160 (S.D.1991), contributory negligence, Runge v. Prairie States Ins. of Sioux Falls, 393 N.W.2d 538, 540 (S.D.1986), and assumption of the risk, Gerlach v. Ethan Coop Lumber Association, supra, 478 N.W.2d at 830, are usually jury questions.

NEGLIGENCE AND PROXIMATE CAUSE

The trial court submitted the case to the jury which returned a verdict for Milton and Sandra Nelson. The trial court gave 51 instructions which followed closely the instructions submitted by Nelson Cattle Company and the South Dakota Pattern Jury Instructions for negligence, proximate cause, contributory negligence and assumption of the risk. Nelson Cattle Company did not object to any of the instructions and none of the instructions are questioned by Nelson Cattle Company on appeal.

Nelson Cattle Company claims that the trial court should have directed a verdict as a matter of law because there was no negligence by Nelson Cattle Company that proximately caused Milton Nelson's injuries. 2 However, we conclude that there was ample evidence of negligence and proximate cause to submit the case to the jury.

There was evidence that Nelson Cattle Company did not provide enough competent workers to move the bin. Calvin Nelson could not help. Steven Nelson was a 15 year old, 115 pound boy. Milton Nelson was a realtor who had not done significant farm work for several years. The jury could reasonably conclude that the crew was not up to the task. Schmeling v. Jorgensen, 77 S.D. 8, 84 N.W.2d 558, 563, 565 (1957).

There was also evidence that Nelson Cattle Company did not provide safe tools to move the bin or a safe place to work. Smith v. Smith, 278 N.W.2d 155, 161 (S.D.1979); Bunkers v. Mousel, 83 S.D. 45, 154 N.W.2d 208, 210 (1967); Ecklund v. Barrick, 82 S.D. 280, 144 N.W.2d 605, 607 (1966); Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528, 529 (1958); Voet v. Lampert Lumber Co., 70 S.D. 142, 15 N.W.2d 579, 582 (1944). Nelson Cattle Company provided a 25-foot long homemade tool consisting of two-by-fours bolted together. The tool broke. The jury could reasonably conclude that Nelson Cattle Company did not provide adequate tools to move the bin.

While there was evidence that Ted Nelson, Jr., knew the bin was too tall to pass beneath overhanging wires and that he tried to select a route to avoid wires, there was also evidence that he did not arrange to have Mike Schoenfelder or the power company assist in getting under the wires. Also, there was evidence that Nelson Cattle Company did not explain how to use the tool correctly 3 and did not provide adequate supervision. Smith v. Community Co-operative Ass'n of Murdo, 87 S.D. 440, 209...

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