Summary
In Tanberg v. Rydberg (1965), 26 Wis.2d 91, 94, 131 N.W.2d 858, we said that "when a jury determines that given conduct either does or does not meet a `standard of prudence,' its finding is obviously entitled to significant weight."
Summary of this case from Cedarburg Light W. Comm. v. Allis-ChalmersOpinion
November 23, 1964 —
January 5, 1965.
APPEAL from a judgment of the circuit court for Barron county: ALLEN KINNEY, Circuit Judge. Reversed with directions.
For the appellant there was a brief and oral argument by Frank E. Betz and William A. Adler, both of Eau Claire.
For the respondent there was a brief by Gannon Gannon of Rice Lake, and Doar Knowles of New Richmond, and oral argument by James A. Drill of New Richmond.
This is an action to recover for personal injuries sustained in an accident occurring in Indiana. Both parties are Wisconsin residents. Rydberg, the defendant, was the driver of a refrigerated semi-tractor-trailer which was engaged in hauling meat from South St. Paul to the east coast. The defendant was the owner of the vehicle, but he had leased it to Midwest Coast Transport Company, a trucking firm, and was driving as an employee of that firm. Tanberg, the plaintiff, was his assistant driver and was also employed by Midwest Coast Transport Company. This was the second time that the plaintiff was the defendant's assistant driver in this same vehicle.
The previous time that the plaintiff had driven as an assistant to the defendant, he had been told by the defendant that the refrigeration unit, called "Transcold" by the parties, was hard to start. It had some sort of ignition trouble. At the beginning of the second trip, a further conversation was held on this subject. Tanberg was not familiar with this particular brand of refrigeration unit, but he was familiar with another brand. The plaintiff testified that during that conversation he told Rydberg what he thought might be wrong with the unit.
Shortly after crossing the Illinois-Indiana border, they stopped at a truck stop for fuel. After pulling the truck up to the gas pumps, they went inside for coffee while an attendant filled the tanks. After finishing their coffee, both parties came out to the truck, and at this time Tanberg claims he said to defendant, "While we are here I'll check the Transcold over and a few other things." There is some conflict in the testimony as to when the plaintiff went under the trailer, but Tanberg testified that he delayed at least a few minutes in going under the trailer after he said he was going to check the refrigeration unit.
The refrigeration unit is essentially a square box which hangs under the trailer just in front of the rear dual tires. There are doors that open alongside the unit which will disclose various gauges and the battery when opened. There is also a plate on the rear of the unit which ordinarily covers an area where the battery is located. This plate was off.
Instead of opening the doors to check the battery, the plaintiff crawled under the trailer and reached in through the back. As he did this, Rydberg started the truck's engine and released the air brakes. It was the defendant's intention to move the truck forward to some scales which were 50 to 100 feet away. Tanberg tried to get out from under the truck, but he was unsuccessful, and the rear duals passed over his knees.
At the close of the testimony, the defendant moved for a directed verdict, and the court withheld its decision until the jury's verdict could be obtained. The jury, on a general verdict, found for the plaintiff in the amount of $20,000. Subsequently, the court granted the defendant's motion for a directed verdict, and it is from the resulting judgment that this appeal is taken.
"Standards of prudent conduct," said Mr. Justice CARDOZO, "are declared at times by courts, but they are taken over from the facts of life." Pokora v. Wabash R. Co. (1934), 292 U.S. 98, 104, 54 Sup. Ct. 580, 78 L.Ed. 1149. Thus, when a jury determines that given conduct either does or does not meet a "standard of prudence," its finding is obviously entitled to significant weight.
In the instant case, the evidence must be viewed in a light most favorable to the plaintiff, since the verdict was directed against the latter. Baumgarten v. Jones (1963), 21 Wis.2d 467, 471, 124 N.W.2d 609. In Gilson v. Drees Brothers (1963), 19 Wis.2d 252, 254, 255, 120 N.W.2d 63, we said:
"The test for determining whether a verdict should be directed is whether `the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.' . . .
"Another rule which has pervaded our study of this appeal is the familiar one which requires a court in weighing a defendant's motion for a directed verdict to regard evidence in a light most favorable to the plaintiff."
The jury's verdict was in favor of the plaintiff Tanberg, but the trial court granted the defendant Rydberg's motion for a directed verdict. The trial court's ruling must be sustained if the evidence supports either of the following propositions: (1) That the plaintiff Tanberg was contributorily negligent (under the Indiana rule) as a matter of law, or (2) that the defendant Rydberg was not negligent as a matter of law.
The Plaintiff's Negligence.
The tort took place in Indiana, and the parties, as well as the trial court, agreed that the law of Indiana is to be applied in determining whether the plaintiff is precluded from recovery if he is contributorily negligent. Restatement, Conflict of Laws, p. 270, sec. 385. Under Indiana law, contributory negligence in any amount is a complete defense in a negligence action. Keck v. Pozorski (Ind.App. 1963), 191 N.E.2d 325.
What conduct of the plaintiff Tanberg could be held to constitute negligence as a matter of law? The trial court noted that Tanberg knew that Rydberg was preparing to drive the truck from the gas pump to the scales and concluded that Tanberg was therefore negligent in putting himself in a dangerous position. However, Tanberg testified that a short time before going under the truck he had informed the driver of his intentions. While there was evidence by Rydberg that he did not hear any such statement, the jury was entitled to believe that the statement was in fact made as Tanberg claimed. It follows that this cannot support a judicial determination that Tanberg was negligent as a matter of law.
The trial court also considered that there was some negligence on the part of the plaintiff as a matter of law in his crawling under the truck rather than inspecting the refrigeration unit by opening the doors located alongside the unit. While that may have been a wiser course to have pursued, it does not necessarily follow that he was negligent in so inspecting the unit. He was not familiar with this particular brand of refrigerating device. The presence of a simpler or better route does not automatically make negligent the use of a different approach.
In our opinion, there was conflicting testimony concerning Tanberg's conduct; these conflicts must be resolved in his favor. An impartial mind could have reasonably concluded that Tanberg was not negligent.
The Defendant's Negligence.
The trial court stated that it was "very difficult to see that defendant was negligent at all." If the trial court had been the trier of fact, this position would be entirely tenable; however, the jury was the trier of fact.
Can it be said that Rydberg was not negligent as a matter of law? If the jury believed that Rydberg had been informed by the plaintiff of the latter's intention to check the refrigeration unit, the jury may properly have deemed it an act of negligence on the part of Rydberg to have moved the truck without first ascertaining the whereabouts of his assistant. Rydberg was not relieved of the potentiality of negligence because while in the driver's seat he was unable to observe a person under the truck.
The trial court also observed that before Rydberg started the truck, plaintiff was standing only a very short distance from the door of the truck. However, Tanberg testified that three or four minutes elapsed between the time he left the presence of the defendant and the time he moved under the trailer; this testimony is not inherently incredible, and, if the jury believed it, it would follow that Rydberg moved the truck without checking as to the current whereabouts of his assistant.
In our opinion, the evidence, considered in a vein most favorable to the plaintiff, would have permitted the jury to conclude that Rydberg was negligent in moving the truck without observing or accounting for the location of his assistant.
By the Court. — Judgment reversed, with directions to reinstate the verdict of the jury.