Orwick v. Belshan

• Decision Date: 13 June 1975
• Docket Number: No. 44177,44177
• Citation: 231 N.W.2d 90,304 Minn. 338
• Parties: Allen ORWICK, Respondent, v. Douglas BELSHAN, Appellant.
• Court: Minnesota Supreme Court

Page 90

231 N.W.2d 90

304 Minn. 338

Allen ORWICK, Respondent, v. Douglas BELSHAN, Appellant.

No. 44177.

Supreme Court of Minnesota.

June 13, 1975.

Syllabus by the Court

1. Where the jury in a special verdict finds that a party's negligence was not a cause of an accident to that party, but the evidence establishes that the plaintiff's negligence was, as a matter of law, a proximate cause of his own injuries, the court should set aside the inconsistent answer in the special verdict which found that the plaintiff's negligence was not causal and insert an affirmative answer.

2. Either as a preface to the comparative negligence question in the special verdict or in the court's instructions, and preferably in both, the jury should be told the previous answers or findings which make necessary an answer to the comparative negligence question.

3. Where the basis for plaintiff's claim is that defendant was negligent in attempting to remove a burned-out bearing with a cold chisel, the inquiry relates to matters not of common knowledge and thus properly is the subject for expert testimony.

4. As a general rule, the trial court should require an experiment or demonstration to be performed outside the presence of the jury where the conduct f such experiment or demonstration is so fraught with peril to those in the vicinity as to require protective equipment for use by the jury and such equipment was not used at the time of an accident.

5. An instruction that the mere fact an accident has happened does not of itself mean that anyone has been negligent, held to be a cautionary instruction which has to do with the burden of proof rather than unavoidable accident.

6. An instruction on the issue of causation given in terms of direct cause as set forth in 4 Hetland & Adamson, Minnesota Practice, Jury Instruction Guides (2 ed.) JIG II 140, held to provide a preferable means of submitting issue to jury under the circumstances here.

Remanded with instructions that the inconsistent answer to question 4 of the special verdict be set aside, that an answer be inserted which is consistent with the answer to the question comparing the negligence of both parties, and that judgment be entered accordingly.

Ross M. Muir, Rochester, for appellant.

Leighton, Meany, Cotter & Enger and Terence L. Meany, Austin, for respondent.

Heard before KELLY, SCOTT, and McRAE, JJ., and considered and decided by the court en banc.

SCOTT, Justice.

Defendant appeals from an order denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. His argument, both orally and by brief, is directed solely to the question of whether a new trial should be granted. The issues raised by defendant can be categorized generally as (1) whether an inconsistency in the answers to questions posed in the special verdict requires a new trial; (2) whether the trial court erred in certain rulings during the course of trial; and (3) whether the trial court erred in its instructions to the jury. We remand with instructions that the inconsistent answer to question 4 of the special verdict be set aside to correspond with the answer to the question comparing the negligence of both parties.

From the record it appears that on June 10, 1970, the parties wre engaged in a haying operation on the farm premises of defendant, Douglas Belshan. Plaintiff, Allen Orwick, was 23 years of age at the time of trial. He had been born and raised on a farm and was operating a farm with his father. Defendant was 31 years of age at the time of trial and operated his farm on a part-time basis. In the haying operation, plaintiff operated a mower and defendant followed the mower with a tractor crimper. The latter piece of equipment broke down late in the afternoon of the day in question and plaintiff undertook to assist defendant in its repair. Plaintiff and defendant determined that to repair the crimper would require a new sealed bearing and collar, which items they obtained from an implement dealer. They then undertook to make the repairs. After removing a wheel from the crimper and placing a block under the shaft, they tried to remove the collar by turning it. When they could not turn it, plaintiff used a hammer and a 5/8-inch cold chisel to cut the collar from the shaft. Thereafter, defendant attempted to remove the bearing, which was frozen to the shaft, by using the hammer and chisel but was unable to cut the bearing because its metal was more highly tempered than the steel in the chisel. According to plaintiff, he was struck in the right eye by a piece of metal while defendant was trying to remove the bearing. The testimony with respect to what was said and done by the parties immediately before the incident was in conflict. Without detailing the parties' different versions of what transpired, it can be said that from all of the evidence factual issues arose with respect to the negligence of each of the parties and with respect to causation.

Plaintiff claimed and sought to prove at trial that defendant was negligent in attempting to cut the bearing from the shaft by the use of a cold chisel. The trial court submitted the case to the jury in a special verdict posing six questions. ¹ By their answers the jury found in response to question 1, that defendant was negligent; in response to question 2, that his negligence was a proximate cause of the accident; in response to question 3, that plaintiff was negligent; in response to question 4, that the negligence of plaintiff was not a proximate cause of the accident; in response to question 5, that of all the negligence contributing to cause the accident, 78 percent was attributable to defendant and 22 percent was attributable to plaintiff; and in response to question 6, that plaintiff had suffered damages in the amount of $26,900.

As returned by the jury, there was an obvious inconsistency in the answers made to questions 4 and 5 of the special verdict. The negligence on the part of plaintiff found in response to question 3 could not at the same time be a contributing cause of the accident as found in question 5 and not be a proximate cause of the accident as found in question 4. The trial court, however, stated in its order for judgment that it was adopting the answers contained in the special verdict and ordered judgment in the sum of $26,900. In so doing, the trial court did not act to reconcile the inconsistency in the answers to questions 4 and 5--it simply ignored the answer to question 5. We do not know what prompted the trial court's order for judgment, for no memorandum accompanied that order or the order from which this appeal was taken.

1. The issue thus raised is whether, under the facts of this case, a finding by a jury that a party's negligence is not a proximate cause of an accident and a later finding, on the issue of comparative negligence, that such negligence contributed to cause the accident are so irreconcilable or inconsistent as to require a new trial. This particular inconsistency, being one created by answers to a causation question and the comparative negligence question, raises an issue of first impression in Minnesota. However, we find that our past decisions involving the reconciliation of answers to questions in a special verdict with the evidence in the case point the way to the rule hereinafter enunciated.

We have held that the findings of a jury under a special verdict are binding on the court. Whelan v. Gould, 259 Minn. 203, 106 N.W.2d 893 (1960); Wormsbecker v. Donovan Const. Co., 247 Minn. 32, 76 N.W.2d 643 (1956); Sorlie v. Thomas, 235 Minn. 509, 51 N.W.2d 592 (1952); Employers Mutual Cas. Co. v. Chicago, St. P., M. & O. Ry. Co., 235 Minn. 304, 50 N.W.2d 689 (1951). However, we have also held that the trial court has the same authority to set aside and change an answer to a question in a special verdict as it has to grant judgment notwithstanding a general verdict, that is, where the evidence requires the change as a matter of law. Strandjord v. Exley, 287 Minn. 145, 177 N.W.2d 48 (1970); Hill v. Wilmington Chemical Corp., 279 Minn. 336, 156 N.W.2d 898 (1968). In Reese v. henke, 277 Minn. 151, 152 N.W.2d 63 (1967), we acted to change the answer to a question in a special verdict where the trial court had declined to do so and where we found that the evidence required such change as a matter of law. The test applied, be it on the trial or appellate level, is whether or not the evidence in the case establishes as a matter of law that a jury's answer to a question must be changed.

In the instant case, the trial court declined to reconcile the inconsistency between the answers to questions 4 and 5. Pursuant to the standard discussed above, we conclude that the evidence as presented does establish, as a matter of law, that the plaintiff's negligence was a proximate cause of his own injuries. Therefore, we hold that where the jury in a special verdict finds that a party's negligence was not a proximate cause of his own injuries, but thereafter, in the comparative negligence question, attributes a portion of the total causal negligence to that party, and the evidence establishes as a matter of law that his negligence was a proximate cause of his injuries, the court should, consistent with the authority set forth above, set aside the answer to the question which found that the plaintiff's negligence was not causal and insert an affirmative answer. ²

The rule herein announced is in accord with rules adopted by the Wisconsin Supreme Court for an inconsistency in a special verdict of the type here involved. Jahnke v. Smith, 56 Wis.2d 642, 203 N.W.2d 67 (1973); Hillstead v. Shaw, 34 Wis.2d 643, 150 N.W.2d 313 (1967); Statz v. Pohl, 266 Wis. 23, 62 N.W.2d 556, rehearing denied, 63 N.W.2d 711 (1954). ³

2. In connection with the issue raised by the inconsistent answers in the verdict, it should be noted that in neither the special verdict form used in this case nor...