Schmidt v. Beninga

• Decision Date: 05 January 1970
• Docket Number: No. 41591,41591
• Citation: 285 Minn. 477,173 N.W.2d 401
• Parties: Armin SCHMIDT et al., Appellants, v. Ronald H. BENINGA et al., Respondents.
• Court: Minnesota Supreme Court

Page 401

173 N.W.2d 401

285 Minn. 477

Armin SCHMIDT et al., Appellants, v. Ronald H. BENINGA et al., Respondents.

No. 41591.

Supreme Court of Minnesota.

Jan. 5, 1970.

Syllabus by the Court

1. Where reasonable men may differ as to what constitutes ordinary care upon the evidence presented, questions of negligence are questions of fact for the jury and it is only in the clearest of cases where the facts are undisputed and it is plain that all reasonable men can draw only one conclusion that the question of negligence becomes one of law.

2. A motion for a directed verdict presents only a question of law. It admits for the purpose of the motion the credibility of the evidence for the adverse party and every inference which may fairly be drawn from the evidence.

3. Where several persons are engaged in the same work, in which the negligent or unskillful performance of his part by one may cause danger to the others, and in which each must necessarily depend for his safety upon the good faith, skill, and prudence of each of the others in doing his part of the work, it is the duty of each to the others engaged on the work to exercise the care and skill ordinarily employed by prudent men in similar circumstances, and he is liable for any injury occurring to any one of the others by reason of a neglect to use such care and skill.

4. The observance of a custom or failure to observe it does not necessarily amount to due care or the lack of it, but such evidence is admissible as tending to show what a reasonable person would do under the same or similar circumstances.

5. If an act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury resulting from it, although he could not have anticipated the particular injury which did happen.

6. Based upon the record here, it is held that the trial court was not justified in directing a verdict for the defendants.

Robins, Davis & Lyons and Dale I. Larson and Jeffrey S. Halpern, Minneapolis, for appellants.

Cummins, Cummins & Gislason, St. Paul, for respondents.

Heard before KNUTSON, C.J., and NELSON, MURPHY, PETERSON, and GRAFF, JJ.

OPINION

GRAFF, Justice. ^*

This is an appeal from an order denying plaintiffs' motion for a new trial.

The sole question on this appeal is whether it was error for the trial court to direct a verdict for defendants at the close of plaintiffs' case.

The facts giving rise to the accident in this case are unusual. There is relatively little dispute concerning them, but the parties disagree as to what conclusions are to be drawn from such facts. The Farmers Grain Company operates a grain elevator in Marietta, Minnesota. Grain and other commodities were brought to the elevator by farmers in the locality. These products were brought to the elevator in 'straight jobs'--trucks with dual wheels and front axles and with boxes ranging in size from 12 to 18 feet. Some of the grain brought to the elevator was moved out by railroad, some was ground for feed, and some was moved out by larger tractor-trailers. The elevator is laid out in an east-west direction, with the entrance at the east and the exit at the west side. The elevator was built before large-sized tractor-trailers were used for transportation.

The floor of the elevator is flat and level. It contained a scale 36 feet long and approximately 9 feet wide. The east end of the scale was 2 1/2 or 3 feet from a ramp and the west end of the scale was approximately 20 or 21 feet from the west door of the elevator. Trucks would approach the scale from the east by proceeding up a 30-foot incline which slopes approximately 20 degrees and terminates 2 1/2 or 3 feet east of the scale. A tractor-trailer whose length was in excess of the length of the scale could not be weighed in a single step. To weigh the units whose length was in excess of the scalc, a two-step or a split-weighing procedure was employed. This procedure was in use for some period of time and was generally understood by the elevator employees and the drivers of tractor-trailer units whose length exceeded that of the scale. The procedure was to drive the empty tractor-trailer so that first only the tractor would be on the scale. This left the trailer wheels partially resting on the east, sloped scale approach. A wooden block was then placed behind the outside front tire of the rear tandem on the right side of the trailer. This was done to eliminate any 'drag' of the trailer during weighing and the trailer would be held in position by the block. After the block was in place, the trailer brakes were generally applied. After the tractor was weighed, the block would be removed and the entire unit would be driven ahead so only the trailer was on the scale. The trailer would then be weighed. It would then be loaded with grain or some other commodity and the weighing procedure would be followed in reverse. That is, the loaded trailer would first be weighed and then the tractor-trailer was backed up to the east and down the slope until the tractor was alone on the scale. The trailer would then be blocked as before and the tractor weighed. When a tractor-trailer was being weighed, there was not enough room on the left side between the elevator wall and the tractor-trailer to walk. There is no issue concerning the accuracy of this weighing procedure. The block of wood used to block the trailer was approximately 14 inches long, 8 inches wide, and 6 inches high.

After the entire loading and weighing procedure was completed, the driver, after receiving a signal by voice or hand from an employee of the elevator, would release the trailer brakes and proceed slowly forward a short distance to take the trailer weight off the block. The driver would then stop the unit and the elevator employee would take out the block. The driver would watch in his right rear-view mirror for a second signal or wait until he heard a voice signal from the elevator employee. Upon receiving such a signal, he would drive his tractor-trailer away from the elevator.

An accident occurred on the afternoon of October 13, 1964, and as a result plaintiff Armin Schmidt lost his right leg. It was a clear day, there was no precipitation, and the surface upon which Schmidt was standing at the time of the accident was dry. Schmidt had worked at the elevator as a truckdriver and general laborer for approximately 2 1/2 years. At the time of the accident, Schmidt was 42 years old and a graduate of the local high school. His principal work before being employed at the elevator was farming, driving a school bus, and selling fertilizer. As a laborer at the elevator for 2 1/2 years, he was constantly involved and totally familiar with the split-weighing procedure used at the elevator for larger units. Until this accident the procedure had never caused any difficulty or injury. Schmidt testified with respect to the procedure for the removal of the block: 'We felt there was no hazard there at all'; '(w)e considered it safe the way we was doing it'; 'I never heard any complaints from anybody, from any drivers or anybody else.' Schmidt was fully satisfied that it was a safe procedure and in discussions had with his coworkers and his employer all were satisfied that it was a safe procedure that involved no risk or danger.

Plaintiff Employers Mutual of Wausau has a subrogation right arising out of its payments to Schmidt as the workmen's compensation insurance carrier for Schmidt's employer, Farmers Grain Company.

Defendant Ronald Beninga was the driver of the tractor-trailer at the time of the accident. Beninga was 21 years old at the time of the accident. He began working for defendant Curtis E. Johnson as a driver of a tractor-trailer truck about the middle of September 1964. Defendant Johnson was doing business as Marietta Truck Lines and he is a defendant in this capacity as well as in his individual capacity. Johnson and Beninga are brothers-in-law.

The particular tractor-trailer driven by Beninga on the day of the accident had been loaded and weighed at the elevator at least 60 to 70 times per year. It did not differ in any material manner from the other tractor-trailer units that came to the elevator for loading and weighing. The tractor driven by Beninga was a GMC Diesel of the snub-nose type where the driver sits above the engine. It had a wheel base of approximately 15 feet and its length would be increased by the amount of overhang in front and in back. The trailer used by Beninga was a grain type trailer about 8 feet wide and approximately 37 feet long with tandem rear wheels. The overall length of this combined tractor-trailer exceeded the 36-foot scale at the elevator. When fully loaded, as it was at the time of the accident, the tractor-trailer weighed about 73,000 pounds. Beninga had frequently driven this particular tractor-trailer. His compensation was a flat fee for every trip, depending on the distance. Beninga testified that the tractor-trailer was in good working order and was adequately equipped at the time of the accident. He had considerable experience in driving trucks, had a chauffeur's license, and was legally licensed to drive a tractor-trailer.

Beninga was familiar with the availability and use of the two outside rear-view mirrors mounted on the sides of the tractor. He was experienced in backing up different types of trucks and trailers and using rear-view mirrors during these operations. For several weeks prior to the accident, he had driven this tractor-trailer to the elevator to pick up or deliver loads almost every day. It was a busy season for hauling and he was doing as much hauling as he could. He was fully acquainted with the physical facts and the general operation of the elevator and was also thoroughly familiar with the two-step or split-weighing procedure employed at the elevator in weighing tractor-trailer units which were longer than the...