Roggow v. Mineral Processing Corp., Needmore Processing Div.
| Decision Date | 29 January 1990 |
| Docket Number | No. 88-3282,88-3282 |
| Citation | 894 F.2d 246 |
| Parties | Charles ROGGOW, Plaintiff-Appellant, v. MINERAL PROCESSING CORP., NEEDMORE PROCESSING DIVISION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stephen C. Halpern, Harry F. Mooney (argued), Moot & Sprague, Buffalo, N.Y., for plaintiff-appellant.
William H. Kelley, Joseph D. O'Connor, III (argued), Bunger, Robertson, Kelley & Steger, Bloomington, Ind., for defendant-appellee.
Before CUMMINGS and FLAUM, Circuit Judges, and WILL, Senior District Judge. *
This personal injury suit is in federal court on diversity grounds--the appellant, Charles Roggow, is a citizen of New York and the appellee, the Needmore Processing Division of Mineral Processing Corp. ("Needmore"), an Indiana corporation.
Roggow is a trucker by profession and in February 1986 he logged a run from New York to Indiana hauling a load of scrap aluminum. Arriving at Needmore, he unhitched his full trailer and traded it for an empty one, to drive back east. Open trailers are typically equipped on top with a piece called a header bar, which fastens the tarp over a load and keeps it from flapping in the wind. On the trailer Roggow picked up at Needmore the header bar was out of place, and because he could not reach high enough to fix it by himself, Roggow asked for help. A Needmore employee, Tracy Phillips, lifted Roggow in the bucket of a highloader, putting him level with the top of the trailer, and Roggow fixed the header bar from there. As Phillips started to lower the bucket to bring Roggow back down, however, he caught his sleeve on the dump lever and the bucket flipped, dropping Roggow nine feet straight down onto a concrete floor.
Roggow suffered two fractured wrists and two fractured lumbar vertebrae from the fall. He sued and the case was tried to a jury, with Magistrate Endsley presiding. The parties stipulated that the proceedings before Magistrate Endsley would be final for purposes of appeal.
After hearing the evidence, the jury fixed total damages at $80,000, but by application of Indiana's comparative fault act, Ind.Code Sec. 34-4-33-1, et seq., limited Roggow's award to $48,000 (sixty percent of the 80,000), on a finding that the accident was forty percent his fault. Roggow filed a motion for a new trial, which was denied, and now appeals.
I
Roggow presses four theories on appeal, three relating to tendered jury instructions and one concerning the adequacy of the damages award. The first is that the magistrate erred when he refused to instruct the jury on the doctrine of last clear chance. Effective in 1985 Indiana became a comparative fault jurisdiction, adopting what is called the "modified approach" (fault is compared unless the plaintiff is more than fifty percent to blame), and Magistrate Endsley explained, in denying Roggow's motion for a new trial, that last clear chance ceases to be a viable doctrine when contributory negligence is abandoned. That is the majority position. See W. Prosser and R. Keeton, The Law of Torts, Sec. 67 at 477 n. 82 (5th ed. 1984 and Supp.1988), listing more than a dozen jurisdictions that have abolished last clear chance since adopting comparative fault. But see also Macon v. Seaward Construction Co., 555 F.2d 1 (1st Cir.1977) (N.H. law), for an example of a jurisdiction that has held to the doctrine of last clear chance, even after abandoning contributory negligence in favor of comparative fault. Roggow argues that whatever the majority trend may be, last clear chance survived Indiana's adoption of comparative fault. No Indiana court has yet taken a position either way. And, fortunately, there is no need for us to either. This is factually not a case of last clear chance.
The classic last clear chance scenario is probably the case of a drunk sleeping on the tracks. Comes the train. The engineer spies the drunk well in advance but negligently fails to stop in time. All the circumstances of the tragedy--drunk asleep on the tracks, train approaching--are established even before the engineer acts (or fails to). Thus, the engineer has and misses an opportunity to avoid a disaster that is already actual or imminent. That is a very different case, however, than this one. Roggow voluntarily went up in the bucket. If all had gone smoothly, then Phillips would presumably have lowered the bucket, gingerly, and Roggow would have made it back to the ground without accident. That is, there was nothing actual or imminent about what happened to Roggow until Phillips accidentally caught his sleeve. Before that moment, Roggow simply was nine feet off the ground, and his position was no different than if he had been nine feet up in an elevator or a cherry picker. He was not in actual or imminent danger and consequently, Phillips' negligence--though clearly a cause of the injury, and a proximate one--had nothing to do with failing to avoid an accident that was already in the offing. That the jury was not instructed about the law of last clear chance was not error; this simply was not a last clear chance case. And that is true whether or not last clear chance is still a viable doctrine in Indiana. See National City Lines, Inc. v. Hurst, 145 Ind.App. 278, 250 N.E.2d 507 (1969) ().
Roggow's second argument concerns the magistrate's refusal to give an instruction on "intervening and superseding causes." The usual purpose of such an instruction is to relieve defendants of liability where their negligence, though a factor in the plaintiff's injury, is superseded by a later cause of independent origin. See Prosser and Keeton, The Law of Torts, Sec. 44. Roggow is the plaintiff and there is no evidence of action by a third person or independent force. We take it, then, that what Roggow means to suggest is a slight variation on the usual case, an instruction to the jury that it could conclude that he bears no responsibility for his accident because his own negligence, if any, was superseded by Tracy Phillips'.
Our duty is to determine "in a common sense manner ... whether the correct message was conveyed to the jury reasonably well," Wilks v. AMA, 719...
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