Thill v. Modern Erecting Co.

• Decision Date: 03 September 1965
• Docket Number: Nos. 39448,39449,s. 39448
• Citation: 136 N.W.2d 677,272 Minn. 217
• Court: Minnesota Supreme Court
• Parties: Edward L. THILL, Respondent, v. MODERN ERECTING COMPANY and Johnson Drake & Piper, Inc., Appellants, J. L. Shiely Company and Jesco, Inc., Respondents. MODERN ERECTING COMPANY and Jesco, Inc., Third-Party-Plaintiffs, v. ASHBACH CONSTRUCTION COMPANY, J. L. Shiely Company, Harlan Stowe and Wesley P. Janshen, Third-Party-Defendants, Respondents.

Page 677

136 N.W.2d 677

272 Minn. 217

Edward L. THILL, Respondent, v. MODERN ERECTING COMPANY and Johnson Drake & Piper, Inc., Appellants, J. L. Shiely Company and Jesco, Inc., Respondents.

MODERN ERECTING COMPANY and Jesco, Inc., Third-Party-Plaintiffs, v. ASHBACH CONSTRUCTION COMPANY, J. L. Shiely Company, Harlan

Stowe and Wesley P. Janshen,

Third-Party-Defendants, Respondents.

Nos. 39448, 39449.

Supreme Court of Minnesota.

Sept. 3, 1965.

Syllabus by the Court

1. Plaintiff who was an employee of a subcontractor engaged in earth-moving work around a building under construction and was injured while backfilling an excavation adjacent to the building was not engaged in a common activity with employees operating a crane and pouring concrete for the roof slab.

2. Where the general contractor did not exercise detailed authoritative control over setting up and blocking a crane which tipped over, employees of the subcontractor furnishing the crane and their services were not loaned servants and the general contractor was not a special employer subject to vicarious liability for their negligence.

3. The general contractor in charge of a construction project is regarded as a possessor of land and may be liable for damages to a business invitee for negligence in failing to exercise reasonably careful supervision of the operation of equipment by an independent contractor permitted upon the land.

4. A general contractor in possession of land is not entitled to indemnity from a subcontractor because of damage incurred from the negligent operation of the subcontractor's instrumentality where the negligence of both parties concurred to cause injury to plaintiff.

5. Under the language of their contract, the general contractor is not entitled to contractual indemnity from the subcontractor cement pourer.

6. Minn. St. 182.12, a provision of the Factory Act, may impose a duty upon one who is not the owner of the crane if the party exercises general supervision and control over its use.

7. Minn. St. 182.12 includes within its protection not only employees but also extends to any person passing under or in proximity to dangerous machinery.

8. The notice provision of the Factory Act, Minn. St. 182.18, applies to injuries incurred by nonemployees on construction projects.

9. Even though statutory notice was not given, submission of § 182.12 of the Factory Act was error without prejudice since the provision essentially calls for liability only when the common-law duty of reasonable care is also breached.

10. Where defendants occupy no particular status in relation to a plaintiff, a general negligence charge is sufficient to inform the jury of those defendants' duties and the consequences of a breach thereof.

11. Although a jury verdict of $642,400 was excessive, it was not the result of sympathetic emotion, and it was within the discretion of the trial court to reduce it to $375,000.

Grannis & Grannis, South St. Paul, for Edward L. Thill.

Faegre & Benson, Paul J. McGough, Wright W. Brooks and Martin N. Burke, Minneapolis, for Modern Erecting Co.

Ryan, Kain, Mangan, Westphal & Kressel, Minneapolis, for Johnson, Drake & Piper, Inc.

Robb, Robb & Van Eps, Minneapolis, for J. L. Shiely Co.

Hoppe & Healy, Minneapolis, for Jesco, Inc. Tyrrell, Jardine, Logan & O'Brine, St. Paul, for Ashbach Const. Co.

Leonard Lindquist and Edward M. Glennon, Minneapolis, for Harlan Stowe.

Robins, Davis & Lyons and John Rice, Minneapolis, for Wesley P. Janshen.

ROGOSHESKE, Justice.

Defendants Johnson, Drake & Piper, Inc., (J.D. & P.) and Modern Erecting Company (Modern) appeal from denials of separate motions for judgment upon amended findings of fact or for a new trial.

The accident from which this case arose occurred on June 23, 1960, during the building of a hangar and one-story office and shop building for Western Airlines at Minneapolis-St. Paul International Airport--Wold-Chamberlain Field. J.D. & P. was the general contractor for the job. Jesco, Inc., was a subcontractor for pouring certain concrete work including the roof slab; J. L. Shiely Company supplied the concrete for the job; Modern Erecting Company furnished a truck crane and two of its employees, Harlan Stowe and Wesley Janshen, at an hourly rental to J.D. & P. to accomplish pouring the roof slab. Ashbach Construction Company, plaintiff's employer, was the subcontractor for certain earth-moving work around the building.

On the day of the accident Ashbach sent plaintiff, Edward Thill, and two other employees to backfill around a fuel oil tank located on the southeast corner of the building under construction. On the same day J.D. & P. scheduled pouring the roof slab. The crane furnished by Modern was set up about midway along the 51-foot east wall of the building for the purpose of elevating bucketfuls of concrete to the roof where they would be poured by Jesco workmen. After 15 or 20 loads had been lifted, the crane, midway in swinging a load to the roof, tipped on its side. The boom fell directly on the plaintiff as he sat on his tractor seat, causing injuries from which he became a paraplegic.

Plaintiff brought action based on negligence against J.D. & P., Modern, Shiely, and Jesco. Ashbach was brought into the action by the third-party complaint filed by Modern, as were Modern's employees, Stowe and Janshen. Various cross-claims were made among the defendants, none of which are significant on this appeal except J.D. & P.'s claim against Modern for common-law indemnity and its claim against Jesco for contractual indemnity.

By special verdict the jury found causal negligence by J.D. & P., Modern, and Janshen, and that Shiely, Ashbach, and Jesco were not negligent. The court found negligence on the part of Stowe, who had answered but had appeared only as a witness. The court also found as a matter of law that the parties were not engaged in a common enterprise, and it denied J.D. & P.'s claims for indemnity. The court thus absolved Shiely, Jesco, and Ashbach and placed liability equally on J.D. & P. and Modern as joint tortfeasors. Modern was granted indemnity against its two negligent employees, Stowe and Janshen. Although the jury awarded damages of $642,400, the court found any amount above $375,000 excessive and granted J.D. & P.'s and Modern's motions for new trial unless plaintiff accepted a reduction of the verdict to $375,000. Plaintiff filed a written acceptance but he seeks on appeal to have the verdict reinstated.

Because the issues presented concern placing ultimate liability among the several defendants it is necessary to set out in considerable detail the evidence relevant to their relationships and each one's part in the mishap.

The voluminous record contains few conflicts in the testimony. Determining the cause of the crane's tipping and which participants are to be held liable for negligence is essentially a problem of choosing between divergent inferences from undisputed testimony and facts. We, of course, are committed to those inferences which tend to support the decision below.

On the day of the accident plaintiff and two fellow employees of Ashbach arrived at the construction site about 7:30 a.m. Their employer had instructed them to backfill around a large fuel tank which had been placed in a hole at the southeast corner of the partially constructed building. The dirt from the excavation was piled in two heaps close to the hole. Plaintiff commenced to move this dirt into the hole with a small back-hoe tractor while the other two employees tamped. Two or three days previously, J.D. & P., the general contractor, had notified Ashbach that the hole could be filled.

The seven or eight man crew of Jesco arrived on the job at about 8 a.m. Their plan was to pour the concrete roof slab in 'passes' along the width of the building's roof. The building ran 252 feet east and west, and 51 feet on its north-south side. Its height was 18 feet. The Jesco men planned to pour passes 10 to 12 feet wide in strips running the width of the building, starting at the north side.

The truck crane from Modern together with Stowe, the operator, and Janshen, the oiler, arrived around 8 a.m. The crane was an American crane, weighing 25 tons, consisting of a cab and truck chassis permitting its operation over the road on rubber tires. From controls in the cab the operator manipulated the boom and a bucket attached to cables. The crane was first located in a parking lot where Stowe and Janshen rigged the cables, fitted on a boom of 60 feet and extended it to 90 feet by attaching a 30-foot jib, and attached the bucket furnished by J.D. & P. After this preparation, the crane was ready to be set in place. Alvin G. Olson, the J.D. & P. foreman, suggested that it be placed along the south wall of the building in order to avoid a number of moves. Stowe, however, preferred to east side, where he would not have to work 'blind' as much, and Olson concurred. The crane was then moved into position. There was a slight incline away from the building, but the rear wheels were spun so that they would sink into the earth, thereby to some extent leveling the crane. The ground in the area was wet, muddy, and spongy. Stowe and Janshen then proceeded to block the crane so that it would be stable during their operation. The crane was equipped with four outrigger steel I-beams, each 8 feet long; two on each side of the bed of the truck and encased in channels so they could be moved outward and could be locked in place with steel pins. Modern's employees slid these four I-beams out from their channels so that they protruded 2 1/2 feet from the sides of the crane at the four corners. They were not locked in place because the locking pins were missing. Under each I-beam upon the ground they placed two 8 8 4 softwood timbers worn or rounded at the edges. They then stacked upon them 12 12 10 hardwood blocks, then some 6 , 4 , and 2 blocks and plywood to shim up to the underside of...