Weidner v. Lineback

• Decision Date: 24 February 1966
• Docket Number: No. 10216,10216
• Citation: 140 N.W.2d 597,82 S.D. 8
• Parties: Robert WEIDNER, Plaintiff and Respondent, v. Joe LINEBACK and Don Lineback, doing business as Lineback Supply and Transportation Co., of Winner, South Dakota, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 597

140 N.W.2d 597

82 S.D. 8

Robert WEIDNER, Plaintiff and Respondent, v. Joe LINEBACK and Don Lineback, doing business as Lineback

Supply and Transportation Co., of Winner, South

Dakota, Defendants and Appellants.

No. 10216.

Supreme Court of South Dakota.

Feb. 24, 1966.

G. F. Johnson, Gregory, for defendants and appellants.

John Simpson, Winner, for plaintiff and respondent.

HANSON, Judge.

Robert Weidner commenced this action for personal injuries against defendants, Don Lineback and Joe Lineback, doing business as the Lineback Supply and Transportation Company of Winner, South Dakota. The jury returned a verdict in favor of plaintiff in the amount of $35,113 and defendants appeal from the judgment and order denying a new trial.

The accident occurred on December 2, 1961 as Weidner was driving defendants' tractor and semitrailer on U. S. Highway 12 down the east slope of the Continental Divide near Helena, Montana. Being unable to control the speed of the rig he failed to negotiate a curve in the highway near the base of the mountain. As a consequence, plaintiff sustained the injuries complained of. He alleged the cause of the accident was defendants' failure and neglect to equip the tractor and trailer with proper brakes and to inspect and maintain the same in a reasonably safe condition.

Defendant, Joe Lineback, was made a party on the theory he was in partnership with his son, Donald Lineback. This issue was submitted to the jury and we find, without detailing all the evidence relating thereto, that there is ample substantial and credible evidence from which the jury could find defendants were associated together as a business partnership beyond the informal relationship of father and son.

As defendants had not complied with the South Dakota Workmen's Compensation Act the defenses of contributory negligence and assumption of risk are not involved. SDC 64.0109. They claim the accident was caused solely by plaintiff's failure to properly gear the truck down and the trial court erred in denying their motion for a directed verdict upon the ground that plaintiff failed to sustain the burden of proving actionable negligence. In determining whether the evidence of defendants' negligence was sufficient to warrant submission to the jury plaintiff is entitled to have the evidence viewed in a light most favorable to him. The test is 'whether there is any substantial credible evidence viewed in the light most favorable to the plaintiff which tends to sustain the verdict.' Parham v. Dell Rapids Township, 80 S.D. 281, 122 N.W.2d 548.

Plaintiff was employed by Linebacks as a truck driver in November 1961. He had four years' experience driving semi-trucks. On the trip resulting in the accident plaintiff left Winner, South Dakota, with a load of feed which was delivered to farmers and ranchers in the central part of the state. At Huron he picked up a load of corn weighing 72,000 pounds and started for Missoula, Montana. At Pierre he had trouble stopping the truck coming down a hill on Highway 14 in the city. When plaintiff reached Billings, Montana he called Donald Lineback and informed him he had a tachometer cable and a speedometer cable installed. He also told him about having trouble with the brakes in Pierre and thought the brakes needed relining and the drums turned. Lineback didn't think such work was necessary as the brakes had been relined shortly before plaintiff was employed. He suggested the brakes be set up. This was done. On all trips plaintiff carried signed blank checks of his employers which could be used for necessary repairs, but it was customary to call Lineback before any major repair was made.

Plaintiff proceeded to Missoula where the load of corn was sold and a 72,000 pound load of plywood picked up. He then started back to South Dakota over the same route. This road crossed the Continental Divide. When he arrived at the crest he stopped and checked his load, tires, and air supply. Two weeks before plaintiff rode down the same mountain road with an experienced driver employed by Colonial Pacific who frequently drove the same road. This driver experimented with the gears of the Lineback truck to determine what gear would best control the rig and maintain an adequate air supply. He started out in first gear and shifted up to fourth. The tractor had 10 gears.

This was a continuous five or six mile winding mountain road down grade with many curves. Plaintiff started down in first gear and shifted up to fourth. His testimony describing the remainder of the trip is as follows:

'Q. From the time you started on top of the mountain coming down could you tell just what happened?

'A. Well, I started down the mountain, part of this wasn't too steep, the further you go the steeper it gets. Your gears or motor will hold your truck back considerably although I gained speed at all times. You have to keep your motor wound up so you keep your air supply built up. I drove in fourth, which seemed to handle the load or hold the load back without a lot of strain on the motor and yet keep it pretty much under control. If you had any brakes at all, you could control it real good. After going down there some ways the RPM built up and I was in fourth gear and I set the brakes and slowed the rig down.

'Q. Did the brakes work?

'A. Yes, sir, I set the brakes and slowed it down and then just let it proceed down the hill in fourth gear. I recall the needle coming up and then some distance further down at the next curve if I remember right, why I stepped on the brakes again and the RPM came back up and I had no brakes, they went clear to the floor. I looked to see what happened and had about 30 pounds of air. My RPMs built to the top and I had no brakes. I reached along side the driver's seat and shut the trailer brakes off and they should lock.

'Q. What do you mean?

'A. It is a supply tank and if you lose your air or go below 30 pounds----

'Q. What does it do?

'A. It sets the trailer brakes.

'Q. This is an auxiliary tank that is supposed to have this pressure set-up?

'A. Yes, and hoping to build up enough air on the tractor to control the load and come down the hill or get it stopped whichever the case may be and things happened pretty fast and about that time the RPM was up to the peg, way over and high as it can get. I shifted one gear up still hoping to build up air. Outside of not having brakes. I wasn't in any touble. If I could get air built up I could still control my load. The trailer brakes never did set enough to know they did and I could never get enough air built up and the tractor brakes couldn't handle the load. I got the air built up to where the brakes would get hot but wouldn't stop it.

'Q. That is on the tractor?

'A. Yes, my RPM would built up and I would shift one more and finally I ran out of gears.

'Q. About how fast do you think you were going when you ran out of gears?

'A. I would say in the neighborhood of 100 miles an hour, too fast. Prior to this there was a car coming up the hill. I blinked my lights and thought they might see I am in trouble. I met this car and them being on the inside and me on the outside there was nothing I could do but take it on the outside or run over somebody and I took it on the outside and that is the last I remember.'

The tractor and trailer went off the highway and plaintiff was severely injured. When he first recovered consciousness he said he lost his brakes and his brakes did not hold.

On previous trips plaintiff had informed defendants about having trouble with the brakes, but they were never repaired or examined by an expert to determine if repairs were necessary. There was also testimony the brakes on the tractor-trailer were not capable of stopping the vehicle within the limits prescribed by statute.

Defendants contend the opinion and circumstantial evidence relating to defective brakes cannot preponderate over direct and circumstantial evidence showing the brakes were in a reasonably safe and satisfactory condition. In this respect it was shown that the brakes on the trailer had been relined and put in first-class condition on February 16, 1961. The brake drum and shoes from the trailer were produced in court and the mechanic who dismantled them found no defective parts. Brake experts testified there were 50,000 miles left on the linings and hubs and only 1/16th of an inch of the original 3/4 inch of brake lining had been used. It was further shown that a hubometer had been installed when the brakes were overhauled in February 1961. At the time of the accident the hubometer reading was 28,247 miles. The expert under whose supervision the trailer brakes had been overhauled stated drums and linings would not ordinarily need repair for 40,000 miles under the hardest conditions such as mountain driving and 200,000 miles under the best conditions. However, the carbonization on the various brake drums was not even indicating the heating of the brakes may have been caused by brake drag or mechanical malfunction rather than by over use. The brake expert called by defendants was also unable to express an opinion as to what caused the brakes to fail by an examination of the drums and linings after the accident. Such physical evidence as to the condition of the brake drums and shoes after the accident is not so conclusive this court can say, as a matter of law, the brakes were adequate at the time of the accident. Breen v. Keen, 55 S.D. 150, 225 N.W. 223.

Nor can this court weigh the probabilities arising from the evidentiary facts to determine whether it is more probable the accident was proximately caused by plaintiff's failure to gear the truck down or by inadequate brakes. In Parham v. Dell Rapids Township, 80 S.D. 281, 122 N.W.2d 548, the criminal law rule of proof by circumstantial evidence was held to have no application in civil actions. It is enough, the court said, 'that a plaintiff in a civil action prove mere preponderance of...