Atherton v. Hoenig's Grocery

• Decision Date: 12 November 1957
• Docket Number: No. 49291,49291
• Citation: 249 Iowa 50,86 N.W.2d 252
• Parties: Hazel ATHERTON, Plaintiff-Appellant, v. HOENIG'S GROCERY and Fred H. Hoenig, James J. Hoenig, Bernard J. Hoenig and Rita T. Hoenig, Defendants-Appellees.
• Court: Iowa Supreme Court

Page 252

86 N.W.2d 252

249 Iowa 50

Hazel ATHERTON, Plaintiff-Appellant, v. HOENIG'S GROCERY and Fred H. Hoenig, James J. Hoenig, Bernard J. Hoenig and Rita T. Hoenig, Defendants-Appellees.

No. 49291.

Supreme Court of Iowa.

Nov. 12, 1957.

Joseph L. Phelan, Fort Madison, for appellant.

Boyd, Walker, Huiskamp & Concannon, Keokuk, for appellees.

THOMPSON, Justice.

Plaintiff's petition alleged that on October 25, 1954, she fell on a defective threshold of the doorway of the building housing defendant's place of business in Fort Madison, and in so doing was injured through suffering a fracture of her right arm. Trial resulted in a jury verdict in her favor for $3,000. The trial court gave her the option of remitting $1,000 or taking a new trial. She declined to remit and appeals to this court from the ruling.

I. Both at the close of plaintiff's case and at the close of all the evidence the defendants moved for a peremptory verdict in their favor. The only ground of these motions which we find it necessary to consider is this: '5. That the plaintiff has wholly failed by a preponderance of the evidence to prove any negligence of these defendants as a matter of law.'

The trial court denied the motions to direct. However, for other reasons not important here, upon defendants' motion for new trial it gave plaintiff the choice above set forth, with the result related. Upon appeal, the defendants urge as their first ground for affirmance that their motion for a directed verdict should have been sustained, and so any error in granting the motion for new trial was without prejudice to the plaintiff. That they are entitled to raise this point, without appealing from the ruling denying their motion for a peremptory verdict, is well settled. Shaw v. Addison, 236 Iowa 720, 726, 18 N.W.2d 796, 803; Lawrence v. Tschirgi, 244 Iowa 386, 388, 57 N.W.2d 46, 47; Humphrey v. City of Des Moines, 236 Iowa 800, 803, 20 N.W.2d 25, 26; Neyens v. Gehl, 235 Iowa 115, 15 N.W.2d 888, 889; McCuddin v. Dickinson, 230 Iowa 1141, 1143, 300 N.W. 308, 309; Thompson v. Butler, 223 Iowa 1085, 1092, 274 N.W. 110, 113.

II. We turn then to the question raised by paragraph 5 of the motion to direct set out above. If this ground of the motion was well taken, as we are constrained to conclude it was, the defendants were entitled to a directed verdict and no prejudice to the plaintiff resulted from the grant of the motion for new trial. At this point some further consideration of the record is essential.

The plaintiff had visited defendant's store for the purpose of making a purchase, and was injured as she was leaving the premises. That a customer who comes to a place of business for the purpose of buying some of the goods offered for sale there is an invitee is not open to question. The plaintiff was impliedly invited to enter defendant's store. Nor can it be doubted that the duty owed to such invitees by the inviter of keeping the premises in a reasonably safe condition extends to the means of ingress and egress. 65 C.J.S. Negligence § 48 b, page 538.

In response to interrogatories propounded by the defendants the plaintiff answered that she had previously been in the store approximately 25 times, and that she had noticed the condition of the alleged defective threshold upon previous occasions. The evidence was that the step at the entrance was badly worn down and this condition caused plaintiff to fall with the resulting injuries. Upon direct examination she testified that she had been going to the store for 'six months or a year or maybe several years' prior to the time of the accident. She further said: 'I was careful because the sill--that worn place--that next step was so far down you would have to be careful because it was really a deep step there--deeper than the average step.' Upon cross-examination the extent of her knowledge of the defect was further made clear by this testimony: 'The condition of the threshold and the step has always been badly worn. I was always careful. It was just a bad step and I would have to be careful, the step always looked treacherous and I was always careful. I would say that it looked each and every time I would go in and out that it was a bad step.' Again, likewise on cross-examination, she said: 'I was always careful to watch that concrete step because, as I say, it was so far from that worn place, you almost had to take precaution in finding your footing because it was so deep there. * * * It has always been badly worn. * * * Well, it always looked treacherous; I will be truthful about that. * * * I would say that it looked each and every time I would go in and out like it was a bad step.'

III. The plaintiff's knowledge of the prevailing condition and of the defect which she claims caused her injury cannot be doubted, in view of her answers to the interrogatories and her testimony. The burden was upon the defendants to show her knowledge of these things, and ordinarily it cannot be said as a matter of law that the one who carries the burden of proof has done so. But here we have the plaintiff herself testifying in open court without contradiction to the very fact which the defendants were required to establish to bring themselves within the rule which we shall later discuss. We must consider plaintiff's knowledge of the existing defect as settled.

IV. We quote from 65 C.J.S. Negligence § 50, pages 541, 542: 'The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, and that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.'

The same rule, in effect, is stated in 38 Am.Jur., Negligence, section 97, pages 757, 758, in these words: 'The liability of an owner or occupant to an invitee for negligence in failing to render the premises reasonably safe for the invitee, or in failing to warn him of dangers thereon, must be predicated upon a superior knowledge concerning the dangers of the premises to persons going thereon. * * *'

'There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the persons injured as they are to the owner or occupant.' We have quoted from or cited with approval the rule laid down in 38 Am.Jur., supra, in Reuter v. Iowa Trust & Savings Bank, 244 Iowa 939, 942, 57 N.W.2d 225, 227; Webber v. E. K. Larimer Hardware Company, 234 Iowa 1381, 1384, 15 N.W.2d 286, 288; and Parsons v. H. L. Green Company, 233 Iowa 648, 652, 10 N.W.2d 40, 42; and in Stafford v. Gowing, 236 Iowa 171, 177, 18 N.W.2d 156, 158, we said: 'Plaintiff was an invitee upon defendant's premises. It was defendant's duty to use ordinary care to warn plaintiff of any danger of which defendant knew and of which plaintiff was not aware.' See also Hicks v. Goodman, Iowa, 85 N.W.2d 6, 9.

Restatement, Torts, Vol. 2, section 343, says: 'A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will...