Dawald v. Rocket Transfer Co.

109 N.W.2d 345, 260 Minn. 210, 1961 Minn. LEXIS 565
CourtSupreme Court of Minnesota
DecidedMay 26, 1961
DocketNo. 38,150
StatusPublished
Cited by2 cases

This text of 109 N.W.2d 345 (Dawald v. Rocket Transfer Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawald v. Rocket Transfer Co., 109 N.W.2d 345, 260 Minn. 210, 1961 Minn. LEXIS 565 (Mich. 1961).

Opinion

Murphy, Justice.

The Rocket Transfer Company appeals from an order of the district court denying its motion for judgment notwithstanding special verdict or for a new trial. The appeal derives from a negligence action in which the plaintiff, William Dawald, recovered a verdict against the appellant as damages for injuries sustained while assisting the appellant’s truck driver in unloading a shipment of corrugated metal culverts. The appellant asserts that the record establishes that, as a matter of law, it was free from fault; that the plaintiff assumed the risk of injury to which he was exposed; and that the accident resulted from his contributory negligence.

It appears from the record that on the day before the accident appellant company left its trailer at the yard of the defendant Armco Drainage and Metal Products, Inc., for loading. The loading operation was wholly accomplished by Armco’s employees. The trailer was a flatbed unit, 32 feet long and 8 feet wide. Armco placed two loads on the trailer. The upper load was destined for Waseca, and the lower load was to be delivered at St. James, Minnesota. The Waseca load consisted of eight culverts 18 feet in length and eight culverts 16 feet in length. On the bed of the trailer Armco placed four 24-inch culverts. In each of these was inserted an 18-inch culvert. Two wooden blocks were nailed to the bed of the truck to keep the culverts from rolling sideways. On top of the 24-inch culverts, Armco placed 2-inch by 6-inch spacer boards, one near the front and one near the back, at right angles to the length of the load. At the edge of these boards similar blocks were placed to keep the second row of culverts from rolling sideways and off the load. On top of the second row of culverts, two more boards and blocks were similarly placed to keep the third row from rolling off. Between the third and fourth rows, or tiers, no boards were placed since the fourth or top row of culverts rested in the grooves formed by the third row. Over the entire load three heavy logging chains were placed — one in the back, one in the middle, and one a few feet from the front. These were secured to the bed of the trailer on one side — designated as the “right” side — ran up and over the top of the load, and were fastened tightly by means of rings and chain tighteners to the truck on the other or “left” side.

[212]*212On the morning of June 6, 1956, appellant’s employee drove a tractor to the Armco yard and hitched it to the loaded trailer. Before moving the load he fastened the three logging chains. He then proceeded to the Waseca highway building, where the top half of the load was to be delivered. When he arrived at the highway department yard, he was directed by the plaintiff to the place where the culverts were to be unloaded. After removing the center chain from the load, the driver removed one of the blocks from the spacer or dividing board separating the upper tiers. He then proceeded to loosen the forward chain. At the same time the plaintiff proceeded to unhitch the remaining chain at the rear of the load. There was evidence from which the jury could find that the driver completed loosening the forward chain before the plaintiff had finished and then proceeded to the front of the truck, intending to go around to the other side. As the driver was walking at or near the front of the tractor, the two top rows of culverts began to fall, at which time he shouted a warning to the plaintiff. The plaintiff testified that after he loosened the rear chain he heard the rumble of rolling culverts, heard the driver yell, and started to run— all at the same time — but was unable to avoid being hit by one of the falling culverts.

The jury found by special verdict that there was no negligence on the part of the Armco company in loading the culverts which proximately contributed to the plaintiff’s injuries. They found that the negligence of appellant’s driver, Floyd Gerdin, proximately contributed to cause the plaintiff’s injuries. They also found that the plaintiff was not contributorily negligent and did not assume the risk of the injury at the time and place of the accident.

In considering appellant’s contention that the record establishes as a matter of law that its employee was free of negligence, certain facts which the jury could have found should be considered. At the time of the accident the plaintiff was a man 63 years of age who had been employed by the Waseca County Highway Department in the capacities of a mechanic and shop foreman for at least a period of 20 years. During that time he had assisted in the unloading of culverts whenever they were delivered to the highway department property. He testified that in his previous experience he had encountered no [213]*213danger or risks in this work. On two prior occasions culverts had fallen from a truck which was being unloaded before the chains had been removed. He testified:

«* * * there was a couple of times after we had went around the truck and pulled the chains off that one or two had fell off of the top tier.”

It is unnecessary for us to speculate as to how the culverts were maintained in equilibrium on previous occasions. The record fully establishes that on the basis of previous experience the plaintiff would not ordinarily expect that the accident would occur in the way it did.

On the record the jury could find that, while appellant’s truck driver was loosening the binder chain at the forepart of the load, he was aware of the fact that the plaintiff was engaged in doing the same thing at the rear part of the trailer. The truck driver testified that the normal procedure was to see that both chains were loose before moving to the other side of the truck. Moreover, it was undisputed that Gerdin was aware of the fact that, as to this particular load, there was nothing to prevent the culverts from falling once the binder chains were released. There is this testimony from the driver, Gerdin:

“Q. Now, in other words, you were aware to a certainty that once these chains were unloosened on the left side of the load that the load of culverts would roll off, is that correct?

“A. Yes.

“Q. And you were aware, also, that at the same time that you were taking one of the chains off, Mr. Dawald was taking the other chain off?

“A. Not until he had it snapped loose and off, I didn’t realize he had it loose.

^ ^ ‡

“Q. Isn’t it correct that the only other possible blocking point for the load on the left side is the block and the chains, and if the block is out, and the chains are unloosed, that the load will roll off the left side, isn’t that correct?

“A. Yes, sure.

“Q. In this case it is true that you had taken the block off the left side?

[214]*214“A. Yes.

“Q. And there were no other blocks on that side?

“A. No.

“Q. So isn’t it also, then, correct to say that when both of these chains were unloosed that this load of culverts would roll off?

“Q. Onto the ground?

“Q. Immediately, as soon as they were unloosed?

“A. Yes.”

As further bearing upon the foreseeability of the accident, there is this testimony from Gerdin:

“Q. But, I mean, isn’t it true, then, that you recognized in your own mind that a peril existed there as far as the culverts when the chains are unloosed, and when the block is out of the load?

*****

“Q.

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Bluebook (online)
109 N.W.2d 345, 260 Minn. 210, 1961 Minn. LEXIS 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawald-v-rocket-transfer-co-minn-1961.