Opinion
No. 75-034
Decided November 20, 1975. Rehearing denied December 11, 1975. Certiorari granted March 15, 1976.
In action to recover for personal injuries sustained when a crane cable supporting a cement bucket carrying a plaintiff broke, the jury returned a verdict in favor of the defendant company that had supplied the crane to the construction site. Plaintiffs appealed.
Reversed
1. JURY — Mere Conjecture — Not Replace — Evidence — Possibilities — Not Establish Probability — Rein on Jury — Only Evidence — Crane Operator Negligent — Issue of Law. The principal that a resort to mere conjecture or possibilities cannot take the place of direct or circumstantial evidence and that no number of mere possibilities will establish a probability represents one of the few reins on a jury's almost unlimited authority to make factual judgments and it must be adhered to; thus, where all the evidence in personal injury action indicated that crane cable's breaking with resultant injury had been caused by crane operator's improper operation of crane, trial court should have decided as a matter of law that crane operator was negligent, rather than submitting matter to a jury.
2. MASTER AND SERVANT — Crane Operator — Use by Affiliate — Not Subsidiary — Payment of Normal Rate — Not Temporary Employee. Under controlling authority, the issue of whether crane operator was employee of crane company or a "loaned" servant of construction company who had rented crane was not a fact issue, and although the company who had rented the crane was an affiliate of the company that supplied the crane and operator, neither corporation was a subsidiary of the other or of a third corporation, and the construction company had paid the normal rate for the use of the crane; hence, the crane operator could not be found to be a temporary or loaned employee of the construction company.
Appeal from the District Court of Larimer County, Honorable Dale E. Shannon, Judge.
Hoffman, McDermott Hoffman, Daniel S. Hoffman, Hill Hill, Alden B. Hill, for plaintiffs-appellants.
Fischer Wilmarth, Elery Wilmarth, G. William Beardslee, for defendant-appellee.
Division III.
Charles Hoffman (Hoffman) instituted a negligence action against Kiefer Concrete Company (Kiefer) to recover damages for personal injuries he sustained while working on a construction site. Patricia Hoffman sued for the loss of her husband's consortium. The Hoffmans appeal from the judgment of dismissal entered upon the jury's special verdicts that neither Charles Hoffman nor Kiefer was negligent. We reverse and remand for a new trial on the issue of damages only.
On May 5, 1972, Hoffman was hired by Poudre Pre-Mix, Inc., (Poudre) to bolt together the upper and lower parts of a cement silo which Poudre was erecting on its property for its own use. He arranged for a crane owned by Reid Burton Co. to raise the upper part of the silo and to hold it in place atop the supporting assembly while he bolted the two parts together. He obtained an additional crane from Kiefer, an affiliate of Poudre, to lift him to the various locations where he would be working. After hooking up a cement bucket to the Kiefer crane, Hoffman got inside the bucket and, by use of hand signals to the crane operator, Richards, indicated where he wanted to be positioned. Richards hoisted the cement bucket carrying Hoffman some 20 feet into the air, and Hoffman began to work. As Hoffman was being maneuvered to a different position, the cable holding the cement bucket suddenly broke and the bucket fell to the ground. Hoffman suffered serious injuries.
The Hoffmans claimed that Richards was negligent in the operation of the crane and that his negligence was the proximate cause of the fall which injured Hoffman. They further contended that Richards was acting in the scope of his employment with Kiefer while performing his duties as a crane operator. Kiefer maintained that Richards was not negligent, that in any event Richards at the time of the accident was a loaned employee of Poudre, and that the acts of Hoffman led to his injuries.
At the conclusion of the evidence, the case was submitted to the jury under standard instructions on negligence and the loaned servant doctrine, and the special verdict form, Colo. J.I. 4:17, was submitted to it. The first interrogatory therein was, "Was the defendant, Kiefer Concrete, Inc., negligent?" The jury answered, "No," to this question and the same as to the negligence of Hoffman. Accordingly, judgment was entered by the court for defendant.
On appeal, the Hoffmans' primary contention is that, pursuant to their motion, the court should have determined as a matter of law (1) that Richards was negligent, and (2) that Richards was not a loaned servant of Poudre.
I.
The only reasonable conclusion to be drawn from the evidence was that the cable broke as a result of "two-blocking" or "booming out." Both expressions denote a process whereby the boom of the crane is extended outward without corresponding extension of the cable, or, alternatively, the cable is reeled in without retraction of the boom. In either case, if the operation continues long enough, the hook and weight assembly at the end of the cable will jam against the pulley at the end of the boom, creating tension on the cable. If tension is increased sufficiently, the cable will break.
The manufacturer's instruction book for the Kiefer crane contained warnings in four different places that the boom extension and cable extension controls must be operated simultaneously. While none of the witnesses actually saw the cable break or saw Richards operating the crane controls improperly, there was testimony both by Richards and by the operator of the Reid Burton crane that they knew of no cause other than two-blocking which would explain how the cable could be broken as this one was. One witness testified that he saw the boom being extended shortly before the cement bucket fell; another stated that he heard the hook and weight assembly strike the end of the boom and heard the cable "crunching in the drum"; a third said that he heard the engine of the Kiefer crane running "under power" at the same time, indicating that the engine was straining. This witness, an experienced crane operator, also testified that the cable had broken at the point where maximum stress would occur in the event of two-blocking.
Kiefer did not refute the two-blocking theory. The president of Kiefer was asked if he knew of any other factors which might have caused the cable to part, to which he responded that there might be one or two other possible causes. But the direct and cross-examination ended without explanation of what the other factors might be.
The possibility that there may have been a latent defect in the cable was mentioned during the trial and during argument to the jury. But no facts were introduced upon which an inference to such effect could be based. In fact, what evidence there was on this point established the opposite conclusion. Richards and another witness testified that they had inspected the cable, if somewhat less than thoroughly, the day before and again on the day of and shortly prior to the accident. Neither had noted any defects. More importantly, the crane had been used on another job the same day, just a few hours before being moved to the Poudre site. On this earlier job, the crane had lifted a number of loads of up to 8,000 pounds without incident. There was no evidence of any occurrence between the two jobs which might have adversely affected the cable. It strains credulity to postulate that a latent defect which did not appear when the crane was lifting 8,000 pounds would suddenly appear a few hours later while the load on the cable, consisting of Hoffman and the cement bucket, was not more than 600 pounds.
The cable had a rated capacity of 9,000 pounds.
[1] "A resort to mere conjecture or possibilities will not take the place of direct or circumstantial evidence. No number of mere possibilities will establish a probability." Denver Rio Grande R.R. v. Thompson, 65 Colo. 4, 169 P. 539. This principle, one of the few reins on a jury's almost unlimited authority to make factual judgments, must be adhered to. In this respect, the instant case is similar to Colorado Southern Ry. v. Thomas, 33 Colo. 517, 81 P. 801, where the court said:
"There is no testimony that in the slightest degree militates against the testimony of [three witnesses] as to any material facts testified to by them, nor any circumstance developed in the case that throws discredit upon their evidence; and we are unable to perceive any reason that warranted the jury in disregarding their testimony and all the admitted circumstances surrounding the case, and base their verdict on some undiscernable inference or conjecture."
The court should have determined as a matter of law that Richards was negligent and that his negligence was the proximate cause of Hoffman's damages.
II.
[2] Defendant argues that the issue as to whether Richards was, at the time of the accident, the employee of Kiefer or of Poudre (as a "loaned servant") was properly submitted to the jury. We disagree. The resolution of the loaned servant issue, under the circumstances of this case, is controlled by Chartier v. Winslow Crane Service Co., 142 Colo. 294, 350 P.2d 1044.
None of the underlying facts upon which this question was to be decided were in dispute, and those facts are virtually indistinguishable from those in Chartier. Accordingly, under the standards established in that case, Richards could not be found to be a temporary employee or loaned servant of Hoffman's employer, Poudre, and a directed verdict for the Hoffmans on this issue should have been granted. See Chivington v. Colorado Springs Co., 9 Colo. 597, 14 P. 212.
Kiefer argues that Chartier is not applicable where, as here, the two companies involved are affiliated corporations — separate corporate entities for tax and other business purposes, but owned and managed by the same small group of shareholders. We do not agree. Neither corporation was a subsidiary of the other or of a third company. The evidence was undisputed that Kiefer charged Poudre its normal rate for the use of its crane operator, and there was evidence that a similar charge would have been made for the crane itself but for an oversight. While the shareholders may have been the same, the corporations, in terms of rights and obligations, are different entities.
Also, Kiefer's reliance on Great Western Sugar Co. v. Erbes, 148 Colo. 566, 367 P.2d 329, is misplaced. While the court in Great Western submitted the issue to the jury, no occasion for reversal was presented because the jury found, on facts very similar to those here, that the crane operator was not a loaned servant.
III.
No issue was raised as to the propriety of the jury's response that Hoffman was not negligent. We find that there is sufficient evidence in the record to support this determination and it will not be disturbed.
The judgment is reversed, and the cause is remanded for a new trial on the issue of the Hoffmans' damages only.
JUDGE RULAND and JUDGE BERMAN concur.