Priske v. General Motors Corp.
| Decision Date | 29 June 1979 |
| Docket Number | No. 76-658,76-658 |
| Citation | 279 N.W.2d 227,89 Wis.2d 642 |
| Parties | William H. PRISKE, Plaintiff-Respondent and Cross-Appellant, v. GENERAL MOTORS CORPORATION, a Foreign Corporation, Terex Earth Moving Equipment Division, General Motors Corporation, a Foreign Corporation, Defendants and Cross-Respondents, Drott Tractor Company, Inc., a Wisconsin Corporation, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
David M. Quale (argued), Douglas H. Starck and Prosser, Wiedabach & Quale, S. C., Milwaukee, on brief, for defendant-appellant.
Frank M. Coyne, Madison, for plaintiff-respondent and cross-appellant.
Eugene O. Gehl (argued) and Axley, Brynelson, Herrick & Gehl, Madison, on brief; Otis M. Smith, Douglas E. Brown, General Motors Corp., Detroit, Mich., of counsel, for defendants and cross-respondents.
William H. Priske commenced this action for personal injuries incurred when the brakes of a front-end loader failed and Priske was pinned against a crusher. The front-end loader was designed and manufactured by Terex Earth Moving Equipment Division, General Motors Corporation (GM). It was delivered in 1967 or 1968 to Drott Tractor Co. (Drott), a GM dealer. Drott rented the front-end loader for a time, later rebuilt it under GM supervision, 1 and then sold it in November 1970 to Construction Supply Company, Priske's employer. The jury found that the loader was not in a defective condition, unreasonably dangerous to persons, when it left the possession and control of the manufacturer (GM) or the seller (Drott). The trial court changed the jury's answer with regard to Drott, finding that the loader was in a defective condition unreasonably dangerous when it left the possession and control of Drott and that this defect was a cause of the injury. The trial court consequently entered judgment for Priske against Drott in the amount of $199,547.02 and granted GM's motion for judgment on the verdict in favor of GM. We reverse that part of the judgment relating to Drott and vacate that part of the judgment relating to GM.
The front-end loader involved in the instant case is a 1967 large heavy-duty four-wheel machine used off the road in the construction and earth moving industries. At the front of the machine is a sizeable scoop or bucket which can be raised or lowered by means of a hydraulic lift operated by the driver, who sits in a cabin atop the machine.
The loader has a hydraulic brake system in which pressure applied by the machine operator's foot on the floor brake pedal is conveyed to the four wheels in the following manner. The pedal is linked to a piston or plunger that enters a brake reservoir (the master cylinder) filled with a viscous oil. When the plunger is pushed into the reservoir by means of pressure on the pedal, it forces oil from the reservoir through four series of lines and fittings into four brake drums or cylinders, one attached to each wheel. The pressure of the oil then forces the brake shoes against the brake cylinders causing the wheels to stop. The brake is an "air over hydraulic system", that is, the operator does not have to rely solely upon his or her foot pressure to work the brake, but also has the aid of pressure from an air compressor. When the operator depresses the brake pedal, compressed air is released and forced against the plunger entering the brake reservoir.
From the date of purchase until the injury, Drott used the front-end loader for a number of jobs: at a gravel pit feeding gravel to a gravel crusher or breaker for use in Construction Supply's asphalt operation; plowing snow; loading trucks; and digging holes.
A few days before the injury on May 17, 1971, the loader was moved to a gravel pit to help relocate and set up a crushing machine, and Alvin Brandenburg was hired to operate the loader during that project. Among Brandenburg's duties was the checking of the oil level in the master brake reservoir. He testified that he checked the reservoir on the day of the accident and several days preceding the accident, finding the reservoir 70 to 80 percent full each day. There appear to have been no complaints regarding the functioning of the brakes before the day of the injury.
On the day of the injury three Construction Supply workers were present at the gravel pit: Priske, Brandenburg, and John Davis. They were building a ramp upon which the loader could ascend to a suitable position for unloading gravel into the crusher. The ramp was being constructed of telephone poles, rocks and gravel. Brandenburg operated the loader and made a number of trips down a hill carrying telephone poles to the site of the ramp. Then he began bringing gravel down the hill to the site of the ramp, as Davis and Priske set the poles in place and shoveled the gravel in around the poles. Brandenburg would back the loader up the hill, away from the crusher and ramp, swing to one side to pick up gravel in the scoop of the loader, and then the loader would descend the hill with the front end of the loader facing the ramp. At a distance of 20-30 feet from the ramp, Brandenburg would brake the loader and wait for Priske and Davis to signal him to come ahead. When the ramp was half done and Brandenburg had made about 50 trips for gravel, he found that while descending the hill the brakes would not stop the loader. Priske and Davis were working on the ramp in front of the loader. Davis heard the loader's engine, shouted and jumped to one side. Priske, in the path of the loader, attempted to jump into the loader's bucket just as Brandenburg began to lift the bucket in order to avoid smashing Priske. Priske's right leg was caught between the bucket and the side of the gravel crusher. The leg had to be amputated above the knee.
After the accident Brandenberg checked the brake reservoir and could see no fluid. The next day William Frank, a field service mechanic for Drott, inspected the loader at the spot where it had been left after the injury. He found the brake reservoir empty, but after making a careful check of all the lines and fittings in the brake system, he could find no signs of a leak. He then filled the reservoir and bled the brake system, finding a few air bubbles. He drove the loader retracing Brandenburg's moves in getting gravel the previous day, and then gave the brakes an additional fifteen minutes of testing. He again checked the brake system, finding the reservoir still full; there was no sign of a leak or of damage or of tampering.
Construction Supply put the loader back into operation. Construction Supply contends that during the summer of 1971 it experienced continued problems with loss of brake fluid, that it complained to Drott, and that at various times it added fluid to the reservoir but detected no leak. Construction Supply claims that late in 1971 it discovered a leak over the left rear wheel by use of red dye placed in the brake reservoir. Construction Supply took the loader to Drott; Drott's service report for December 1971 shows that the left front wheel was removed and brake shoes replaced. Drott's service reports do not show any complaints about the brakes.
The case went to the jury on a set of special verdict questions based on the theory of strict liability. In its verdict the jury gave the following answers to questions 1 through 4:
"QUESTION NO. 3: At the time the front end loader left the possession and control of the defendant Drott Tractor Co., Inc., was it in a defective condition unreasonably dangerous to persons?
The jury apportioned 5 percent causal negligence to Priske, 50 percent to Construction Supply, Inc., and 45 percent to Brandenburg, and found that Priske had sustained damages from the accident totaling $210,049.50. Upon motion after verdict by Priske, the trial court ordered that the answer to Question No. 3 be changed to "Yes" and that Question No. 4 be answered "Yes," but it denied Priske's motion to change the answer to Question No. 1 from "No" to "Yes." The trial court then entered judgment for Priske against Drott in the amount of $199,547.02.
Drott contends that the evidence does not warrant the trial court in changing the answer to verdict question 3 from "No" to "Yes." Drott correctly states that sec. 805.14(1), Stats., sets forth the test the trial court must use in reviewing the sufficiency of the evidence on motions after verdict:
This standard is also applied by this court on appeal. Chart v. General Motors Corp., 80 Wis.2d 91, 110, 258 N.W.2d 680 (1977); Lehman v. Sentry Ins. Co., 35 Wis.2d 96, 98, 150 N.W.2d 333 (1967).
The issue is therefore whether there is any credible evidence to sustain the jury's answer to Question No. 3, considering all the credible evidence and reasonable inferences therefrom in the light most favorable to Drott. If there is such credible evidence, or favorable reasonable inferences therefrom, neither the trial...
To continue reading
Request your trial
-
Hedtcke v. Sentry Ins. Co.
...to the circuit court for a hearing and a determination of whether Sentry's motion should be granted. Priske v. General Motors Corp., 89 Wis.2d 642, 663-64, 279 N.W.2d 227 (1979). If the circuit court issues an order enlarging the time, it must comply with sec. 801.15(2)(a). The order must s......
-
Godoy ex rel. Gramling v. E.I. Du Pont De Nemours & Co.
...Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980); • Shawver v. Roberts Corp., 90 Wis.2d 672, 280 N.W.2d 226 (1979); • Priske v. General Motors Corp., 89 Wis.2d 642, 279 N.W.2d 227 (1979); • Black v. General Elec. Co., 89 Wis.2d 195, 278 N.W.2d 224 (Ct.App. 1979); • Ransome v. Wisconsin Elec. Power......
-
Corroon & Black-Rutters & Roberts, Inc. v. Hosch
...where (as here) the verdict has the approval of the trial court. Sec. 805.14(1), Stats. 1979-80; Priske v. General Motors Corp., 89 Wis.2d 642, 652, 279 N.W.2d 227 (1979); Roach v. Keane, 73 Wis.2d 524, 536, 243 N.W.2d 508 (1976); Thoe v. Chicago, Milwaukee & St. Paul Railway Co., 181 Wis. ......
-
Sumnicht v. Toyota Motor Sales, U.S.A., Inc.
... ... General Motors Corporation, 391 F.2d 495 (8th Cir.1968). That court pioneered the ... Corp. v. Commercial Police Alarm Co., [84 Wis.2d 455] at 458, 459 [267 N.W.2d ... 19 See, n. 7 above ... 20 See, e.g., Priske v. General Motors Corp., 89 Wis.2d 642, 279 N.W.2d 227 (1979), and ... ...