Anthes v. Anthes

• Decision Date: 14 December 1965
• Docket Number: No. 51793,51793
• Citation: 258 Iowa 260,139 N.W.2d 201
• Parties: Oscar A. ANTHES, Appellee, v. Fern R. ANTHES, Appellant.
• Court: Iowa Supreme Court

Page 201

139 N.W.2d 201

258 Iowa 260

Oscar A. ANTHES, Appellee, v. Fern R. ANTHES, Appellant.

No. 51793.

Supreme Court of Iowa.

Dec. 14, 1965.

John G. Vernon, Marion, and Fisher & Pickens, Cedar Rapids, for appellee.

Lynch, Dallas, Smith & Harman, Cedar Rapids, for appellant.

RAWLINGS, Justice.

This case has been here before. Upon appeal by plaintiff from judgment on directed verdict for defendant we reversed and remanded. The case was then retried, submitted to a jury, verdict returned for plaintiff in the sum of $37,500, and judgment in that sum entered. Despite defendant's argument to the contrary, we find plaintiff's testimony on the second trial was substantially the same as on the first trial. Nothing would be gained by here repeating those facts at length. See Anthes v. Anthes, 255 Iowa 497, 122 N.W.2d 255. However, plaintiff did file an amended and substituted petition prior to the second trial, which is, of course, controlling in our consideration of this appeal.

I. By his amended and substituted petition plaintiff alleged he was an invitee upon the property of defendant at time of injury. This is denied by defendant's answer. Evidence was presented by plaintiff supporting his claim, which is not seriously controverted by defendant's testimony. The instructions to the jury were based upon the premise plaintiff was unquestionably an invitee. Defendant never challenged this assumption by any requested instructions or objection instructions as given.

Upon this record we are committed to the position plaintiff was an invitee at the time and place of his claimed injury. Rules of Civil Procedure 196; 58 I.C.A.; and Hahn v. Graham, Iowa, 128 N.W.2d 886. This means plaintiff was upon defendant's premises either by express or implied invitation of defendant on business of material interest to both, or in connection with the business of defendant. Smith v. Cedar Rapids Country Club, 255 Iowa 1199, 1203, 124 N.W.2d 557. The relative rights and duties of plaintiff and defendant are to be determined accordingly.

II. One of our most recent pronouncements in this field was in Anthes v. Anthes, supra, where we said: 'The inviter's duty is to use reasonable care to keep the property in a reasonably safe condition for the contemplated use.' Then, 'It was defendant's (inviter's) duty to use reasonable care to have his premises reasonably safe for invitee; if not safe it was his duty to remedy the defect or danger, or to warn the invitee who in the exercise of reasonable care [would] not know of the defect or danger.' And, 'Defendant (inviter) is not liable for injuries from dangers that obvious, reasonably apparent or as well known to the person injured as they are to defendant.' (Emphasis supplied). See 38 Am.Jur., Negligence, section 97, page 757, and 65 C.J.S. Negligence §§ 49-51, pages 541-548. And in Holmes v. Gross, 250 Iowa 238, 249, 93 N.W.2d 714, we held the duty of an inviter, as above set forth, is a continuing one. In the case now before us plaintiff entered upon defendant's premises as an invitee, and this he remained at all times concerned.

III. Reduced to the ultimate, defendant challenges: (1) Sufficiency of the evidence to support the pleaded particulars of negligence, and instructions given as to these specifications; (2) adequacy of evidence to support the claim of proximate cause, and of injury and damages to plaintiff; (3) adequacy of the record relative to impairment of earning capacity, and the instruction given; (4) admission of evidence as to custom, and the instruction given; and (5) excessiveness of the verdict.

In the consideration of the claimed errors, we view the evidence in the light most favorable to plaintiff and accord to him the benefit of all permissible inferences.

IV. Plaintiff has asserted a series or combination, of factors constituting negligence which he claims were the proximate cause of his injuries and damage. These specifications of negligence may be fairly summarized as follows: (a) Failing to install horizontal tunnel sections so the ends overlapped; (b) improperly erecting the vertical tunneling so it rested on the horizontal tunneling rather than on a solid base; (c) using different sized sections in erecting the vertical tunneling; (d) attempting to fasten vertical tunneling in place with binder twine; and (e) failing to properly fasten the top of the vertical tunneling. Plaintiff also claimed negligence in failing to warn him as to each of these alleged acts or omissions.

Although these particulars of negligence as pleaded may have left some things wanting they were sufficient to apprise defendant as to the basis of plaintiff's claims. Plaintiff was entitled to present any competent evidence in support of his specifications of negligence, and to have the court instruct the jury accordingly, subject only to the condition legally sufficient evidence was in fact presented. Rules of Civil Procedure 70, 58 I.C.A.; and Sutton v. Moreland, 214 Iowa 337, 340-342, 242 N.W. 75.

In Anthes v. Anthes, supra, we said an allegation that defendant negligently did a certain act is equivalent to saying defendant owed a duty to exercise reasonable care. The same rule applies, of course, to an omission to do a certain thing which should have been done.

V. We find plaintiff did produce sufficient competent testimony to support his allegations of negligence.

Defendant erroneously assumes the accepted rule of law to be that an inviter is not liable where an existing condition is as well known to the invitee as it is to the inviter. This can be and is sometimes only half the story. As we have repeatedly said, the inviter's duty applies only to defects or conditions which are in the nature of dangers, traps, snares, pitfalls, and the like, which are not obvious or known to the invitee, but which are or in the exercise of due care should be known to the possessor. Conditions may be such as to make a danger or peril self-apparent. On the other hand conditions may be such that the danger is latent, concealed or hidden. Corrigan v. Younker Bros., Inc., 252 Iowa 1169, 1175, 110 N.W.2d 246; 38 Am.Jur., Negligence, section 96, page 754, section 102, page 762; and 65 C.J.S. Negligence § 50, page 541.

In the case now before us plaintiff admittedly saw existing conditions. However, he had never had any prior experience with wire mesh cribs, knew nothing about horizontal or vertical mesh tunneling in such cribs, and more specifically knew nothing of the methods employed by defendant in his installation of either the horizontal or vertical tunneling prior to the accident. Furthermore, defendant never advised plaintiff as to the methods he had so employed or the attendant dangers. A jury question was clearly presented as to whether plaintiff saw or should have appreciated the perils or dangers of the conditions he observed. Warner v. Hansen, 251 Iowa 685, 688-689, 102 N.W.2d 140. A like question was presented as to whether defendant knew of the alleged perils or dangers, or should have known of them, or should have warned plaintiff. See Corkery v. Greenberg, 253 Iowa 846, 114 N.W.2d 327; Robinson v. Fort Dodge Limestone Co., 252 Iowa 270, 106 N.W.2d 579; Jackson v. Chicago, M., St. P. & P. Ry. Co., 238 Iowa 1253, 30 N.W.2d 97; Webber v. E. K. Larimer Hardware Co., 234 Iowa 1381, 15 N.W.2d 286; 2 Restatement, Torts 2d, section 343, page 215; and 38 Am.Jur., Negligence, section 97, page 757.

VI. By instructions 13 through 17, the court properly advised the jury as to plaintiff's allegations of negligence, (a) through (e) above. Then by instructions 19 through 22 proceeded to give proper related instructions as to defendant's duty to warn.

In these instructions the court appropriately paraphrased and thus clarified the specifications of negligence asserted by plaintiff. Russell v. Chicago, R. I. & P. R. Co., 251 Iowa 839, 851, 102 N.W.2d 881. In so doing the trial court proceeded to first state properly each separate specification of negligence, then just as properly advised the jury to the effect that if such method of installation or construction was as an ordinarily careful and prudent person would have done, the defendant would not be negligent, otherwise defendant would be negligent. This was followed, in each instance, by separate instruction which advised the jury relative to defendant's duty to warn.

In that connection instruction 10 informed the jury to the effect defendant would not be liable for injuries from dangers obvious or apparent to plaintiff.

Then by instruction 11 the jury was specifically told there could be no liability unless it be shown by a preponderance of the evidence there was a duty to use care, an omission to perform the duty, and that defendant would not be liable to plaintiff unless probability of harm could reasonably have been foreseen by defendant.

This is followed by instruction 12 which served to tell the jury plaintiff could not recover if he knew or reasonably should have known of any claimed negligence in the construction or installation of the tunneling.

Then instruction 18 told the jury plaintiff could not assert against defendant any claimed element of negligence known to plaintiff or which he should reasonably have known. This was in the nature of a repetitive cautionary instruction which served to further clarify the issue as to known or apparent danger. Defendant has no reasonably cause to challenge instruction 18 which is most favorable to him.

All instructions given should be considered together. Shank v. Wilhite, Iowa, 129 N.W.2d 662. When we so consider the instructions given, it becomes evident defendant has no just cause for complaint as to plaintiff's specifications of negligence.

We are satisfied a jury issue was presented as to the elements of negligence asserted by plaintiff, Rules of Civil Procedure 344(f) 10, and equally satisfied the court properly instructed the jury in this area.

By the same token we find no...