Nepstad v. Lambert

• Decision Date: 03 August 1951
• Docket Number: No. 35341,35341
• Parties: NEPSTAD v. LAMBERT et al.
• Court: Minnesota Supreme Court

Page 614

50 N.W.2d 614

235 Minn. 1

NEPSTAD v. LAMBERT et al.

No. 35341.

Supreme Court of Minnesota.

Aug. 3, 1951.

Rehearing Denied Dec. 28, 1951.

Syllabus by the Court.

1. A servant in the general employ of one employer may become the loaned servant of another employer. This relationship may exist with respect to some acts of the servant and not as to others. Where the business of the general employer consists of renting machines and operators to perform work for others, the test of whether an operator is a loaned servant with respect to a given act is whether the special employer had the right to exercise detailed authoritative control over the act in question. Where, as here, it conclusively appears that the special employer alone had such right of control over the act of the servant which negligently caused plaintiff's injury, the special employer and not the general employer is liable therefor under the doctrine of Respondeat superior.

2. Under the law of Wisconsin, where one co-employe negligently injuries his fellow employe, it is no defense in a suit against him to assert that they both were employed under one master.

3. Trial court's instructions on contributory negligence when considered as a whole did not present prejudicial error, although a portion thereof, standing alone, could have been prejudicial.

4. Requested instruction proffered orally at the conclusion of the charge comes too late. This rule is particularly applicable where, as here, the requested instruction was not essential to jury's consideration of the controlling issues in the case. Accordingly, there was no reversible error in court's failure to instruct jury that in determining damages for loss of future earnings it should allow only the present value of such earnings, especially where record on appeal discloses nothing to indicate that loss of future earnings was included as an element of damage by jury.

Meagher, Geer & Markham, Howard P. Quealy and Herbert C. Davis, all of Minneapolis, for appellants.

Thompson, Hessian, Fletcher & McKasy, Minneapolis, for respondent Nepstad.

Charles H. Weyl, St. Paul, for Northern States Power Co.

CHRISTIANSON, Justice.

This case involves an action in tort to recover damages for injuries sustained by plaintiff in an accident occurring at Menomonie, Wisconsin, on August 6, 1946.

It will perhaps make the preliminary facts more meaningful if it is stated at the outset that plaintiff was injured when some portion of a truck crane made contact with a high voltage (66,000) power line operated by defendant Northern States Power Company. The crane was being used on a construction job, and at the time it contacted the power line plaintiff was holding some steel trusses fastened to the boom of the crane by means of a steel-hoisting cable. As a result of the contact, the current was transmitted through the crane and trusses to plaintiff, who sustained burns so severe that he lost the use of one hand, lost one leg by amputation, and underwent numerous operations.

Suit was brought in Hennepin county district court against (1) J. M. Lambert, the owner of the crane, doing business as the Truck Crane Service Company; (2) August Pasma, the operator of the crane; and (3) Northern States Power Company. Subsequent to the accident, all assets and liabilities of Lambert's business were assumed by Truck Crane Service Company, a Minnesota corporation, and it has also been designated as a defendant. With the exception of the Northern States Power Company, which is a Wisconsin corporation, all parties to the suit are residents of Minnesota.

At the trial, special interrogatories were submitted to the jury in order to settle issues of fact as required by the comparative negligence law of the state of Wisconsin. ¹ The jury found: (1) That plaintiff sustained total damages of $77,500; (2) that Pasma, at the time and place of the accident, was not a loaned servant; (3) that Pasma was guilty of 65 percent negligence; (4) that Northern States was guilty of ten percent negligence; and (5) that plaintiff was guilty of 25 percent contributory negligence.

All the defendants except Northern States joined in an alternative motion for judgment notwithstanding the verdict or a new trial. This appeal is from the order denying their motion. Defendant Northern States was made a respondent on appeal, and on December 29, 1950, it moved this court to dismiss the appeal as to it. Plaintiff did not oppose this motion, but appellants did. The record on appeal contains the testimony of only one of Northern States' witnesses, and none of the assignments of error have any bearing on the issue of negligence on its part. The motion to dismiss was denied with leave to renew it at the time of the hearing on the merits; and, having been renewed, is now before us as one of the matters to be decided on this appeal.

In this case, we have had the benefit of a clear and detailed statement of the facts and an excellent plat showing the premises upon which the accident occurred. Through the medium of a miniature model, we have been shown a truck crane of the type involved in the accident. The particular truck crane involved weighs 24 tons and is a machine of substantial value.

A truck crane, as its name implies, is a crane mounted upon the chassis of a truck and is frequently used on construction projects for lifting heavy weights. The crane portion of the machine is motor-operated and is controlled by the crane operator, who is seated in a cab mounted upon the rear of the truck chassis approximately five feet above the ground. A curret arrangement enables the operator to swing both the cab and the boom, which was 60 feet long, in a complete circle. A system of cables and pulleys operated from the cab regulates the elevation of the boom and the hoisting of the loads. Five levers and two pedals are used in working the various cables, but on the particular job involved only three levers and one pedal were being used. Because the boom is offset and because the cab has a roof, the operator's view as he sits in the cab is limited to his right and upward, but is unobstructed straight forward and to the left. When the motor of the crane is in operation, its noise prevents the operator from hearing the voices of persons on the ground. The truck portion of the machine is entirely independent of the crane. It operates on a separate motor and is driven by another worker, known in the trade as an oiler, from a cab mounted in standard position on the front of the truck chassis.

Plaintiff's employer, the L. G. Arnold Company, was a general contractor in charge of a project to expand the Lakeside Aluminum Company's plant at Menomonie, Wisconsin. It had from 22 to 25 men employed on the project in addition to a steel crew of four men. Friday, August 2, 1946, a few weeks after construction had been started, the Arnold company, through its agent, phoned Lambert, who rents cranes as a business, to inquire whether he had a crane with operators available to go to Menomonie the following Monday morning to help with the erection of steel. It was agreed that the Arnold company would pay $12 per hour, that the crane would arrive on the work site by noon on Monday, and that the crane would be equipped with a 60-foot boom. In addition to this conversation, the only other evidence bearing upon the contract terms was an invoice indicating that the use of the machine and the gas, oil, maintenance, and services of the operator and oiler were included in the rental charge of $12 per hour.

After receiving the call, Lambert told his dispatcher to send a crane with two operators to the aluminum company's plant. When Pasma reported in to the dispatcher, saying that he and Ben Pastwa, an oiler, would finish the job they were on in St. Paul that evening, he was told to leave Monday morning for Menomonie, Wisconsin, and to report to the Arnold company at the aluminum company's plant. He was also told that a 60-foot boom would be needed. Both Pasma, the operator, and Pastwa, the oiler, were on Lambert's payroll. Lambert also had workmen's compensation coverage on them, made their withholding tax deductions, and paid their social security taxes. Both men were paid on an hourly wage basis.

Pasma and Pastwa reported to George Morris, the Arnold company's steel foreman, when they arrived at the work site about 10:30 Monday morning. Morris told them that it was so close to noon they should go to lunch and that they could set up the boom in the afternoon. However, Morris, with the help of his steel crew, appears to have assembled the boom. After the boom had been assembled, Morris gave arm and hand signals directing the movement of the truck crane to the point where work was to be commenced. At first the crane was used to install prefabricated steel trusses in horizontal positions and prefabricated steel beams in upright positions so that the steel crew could bolt them in place. Morris had blueprints of the construction project to enable him to identify the various prefabricated steel pieces and direct their installation in the proper places. Since Pasma, the crane operator, could not hear oral instructions because of the noise in the crane cab, he was directed entirely by a standard system of arm and hand signals used in the building trade. Signals are used to raise and lower the boom, to swing it right or left, to give or take up slack in the hoisting cable, to hold the load, and to direct all movements of the crane. From the nature of the work, it appears that the success of the work and the safety of the steel crew, working at points where the steel pieces were being joined, were greatly dependent upon the precision with which the crane operator was able to respond promptly and accurately to the arm and hand signals. The steelworkers rely upon the crane opeator to watch for signals at all times and to move the crane precisely in accord with the signals given. He is not...