Jones v. Mitchell Bros. Truck Lines

TONGUE, J.,

dissenting in part.

In my opinion, plaintiff is entitled to a new trial as against defendants Mitchell Bros. Truck Lines and Sehamburger, its Safety Director, because of what I consider to have been error in excluding plaintiff’s offer on trial of the following testimony by defendant Sehamburger at the time of his pretrial deposition:

“Q If you had known the red truck was going to go across the road, you would have taken some precautions in connection with it?

“A Certainly. You don’t cross the road in that manner without taking precautions.

“Q Did this constitute a safety hazard, in your opinion, when the truck crosses like that?

“A I think it does in the manner where you are going right —• like I say, I didn’t know there was a driveway over there, but after, I could see where I figured he had backed in there and pulled around, but it constitutes a safety hazard any time you cross the main portion of the road with a boom truck.

“Q If you had known he was going to do that, you would have put up a flagman or signs ?

“A I would have had people out there. I would have flagged him myself if I had known that this is what his intentions were of doing, I guess.

“Q There was sufficient people there and sufficient equipment to do that job?

“A I could shut down a job any time for reasons of safety to protect the general public, yes, and I would have done it in this case.

*531 “Q And that’s yonr job?

“A Yes, sir, it is.”

Plaintiff contends this evidence was relevant to show the failure on the part of defendant Schamburger to properly supervise the activities of the driver of the red Mack truck and was admissible as an admission that he was negligent in failing to supervise the activities of the driver of the red Mack truck.

It is contended by the defendants in their brief, however, that:

“The questions and answers set out in plaintiff’s Brief under this ' assignment of error are from defendant Schamberger’s deposition and involve only the truck ‘crossing the road.’ Schamber ger merely stated that when a truck crosses the road, or is going to back off the road, it is a good idea to have a flagman out. But, his testimony did not state that when a truck is stopped, off the road, in a driveway, and while it is waiting for a vehicle that can see the truck for a distance of 1,600 feet, that flagmen should be present. That is exactly the situation presented in this ease. The accident involving plaintiff did not happen while the truck was crossing the road. The truck did not present any hazard and did not block either lane of traffic, and was clearly visible to everyone in its position by the highway. There is nothing in the testimony of 8 chamber ger, as set out in the Third Assignment of Error, which suggests that there shoidd be a flagman available when a truck is merely sitting in a driveway.” (Emphasis added)

In reply, plaintiff contends that:

“Again, defendant takes a narrow view of the salvage operation. The fact (if indeed it is a fact) that the truck was temporarily stopped does not relieve those in charge of the duty of supervision. If in a salvage operation where many vehicles are *532 involved, they are all off the road at a given time, the duty to supervise and warn does not cease until such time as the vehicles again go upon the roadway. Rather, the entire salvage operation must be viewed as a continuous operation with the duties of the parties continuing over the entire period of time.”

I am inclined to agree. It may be that the truck was not actually crossing the highway at the time of this accident. As stated by the majority, however, the rear of the truck was then facing the highway, with its boom extending to the rear of the truck and toward the highway. As also stated by the majority, there was testimony that the truck was on an incline; that to keep the truck from rolling down the incline the driver kept operating the clutch in a manner that caused it to move back and forth slightly from time to time as he waited for the traffic on the highway to pass.

There was also testimony that the rear wheels of the truck were “a foot or two” from the edge of the pavement. The boom of the truck extended beyond the rear of the truck and had a bucket on the end, which was swinging back and forth.

Finally, as stated by the majority, defendant Purdy testified that as he was approaching the truck he saw it suddenly move toward the highway; that it “scared me to death” and he “slammed on my brake,” causing his car to go over the center line and into the path of the car in which plaintiff was riding.

Under this testimony I cannot accept the contention by these defendants that “[T]he truck did not present any hazard * * *” and that “[t]here is nothing in the [offered] testimony of Schamburger * * * which suggests that there should be a flagman avail *533 able when a truck is merely sitting in a driveway.” Tbe majority appears to agree with that contention as tbe basis for its decision on this issue. Thus, tbe majority states that:

“Since the Bostwick truck had crossed the highway and was STANDING in a private driveway on the north side of the highway when the Espelund and Purdy vehicles approached from the east, and the vehicle in which plaintiff was riding approached from the west, we think the absence of a flagman when the Bostwick truck crossed the highway was irrelevant. * * *” (Emphasis added)

On the contrary, I am of the opinion that from the offered testimony of defendant Schamburger the jury could reasonably have found that as Purdy approached the scene this truck, with its boom swinging out behind, backed suddenly toward the highway to a point at which its wheels were -within “a foot or two” of the pavement, with the swinging boom extending even further; that Purdy was led to believe that the truck was then in the process of starting across the highway and that under these circumstances the truck did in fact present a hazard to oncoming traffic, including defendant Purdy.

I am also of the opinion that the jury could reasonably have found from the offered testimony of defendant Schamburger that under these circumstances a flagman should have been available and that these defendants were negligent in failing to provide a flagman on the highway at the rear of the truck to either stop approaching motorists, including defendant Purdy, in the event that the truck was, in fact, about to back out upon the highway, or to signal them that it was safe to proceed, in the event that the truck was not going to back out upon *534 the highway until such approaching motorists had passed.

Under these circumstances it is my belief that plaintiff was prejudiced by the exclusion of this evidence. Because the jury found in favor of defendant Bostwiek does not, in my view, require a contrary result, as held by the majority. In my opinion, that fact is not sufficient to overcome the well established presumption that this error was prejudicial.

In addition, it is my view that although this evidence was primarily relevant upon the question of the negligence of defendants Mitchell Bros, and Schamburger, it was also relevant upon the question whether, in the absence of a flagman, defendant Bostwick was negligent in conduct which led Purdy to believe that he was starting to back his truck upon the highway. Had the jury been informed the admitted importance of a flagman during this operation, it might well have declined to return a verdict in favor of defendant Bostwiek, as well as defendants Mitchell Bros, and Schamburger.

For these reasons I dissent from that portion of the opinion which holds that the trial court did not err in excluding this testimony.