Banz v. Jordan Motor Co.
| Decision Date | 09 August 1971 |
| Docket Number | No. 10299,10299 |
| Citation | 94 Idaho 369,487 P.2d 1123 |
| Parties | Norman F. BANZ, Plaintiff-Appellant, v. JORDAN MOTOR CO., Inc., Defendant-Respondent. |
| Court | Idaho Supreme Court |
John H. Hjellum, II, Boise, for plaintiff-appellant.
Jerry v. Smith, Lewiston, for defendant-respondent.
Norman Banz brought this action in the district court seeking damages for personal injuries he suffered after being struck on his head by an overhead mechanical garage door at Jordan Motor Company's automobile service department in Grangeville. The action was tried to a jury which returned its verdict in favor of Mr. Banz and awarded him $16,085.00 as damages. The defendant moved for judgment notwithstanding the verdict 1 or, in the alternative, a new trial. The trial court by order granted the motion and entered judgment notwithstanding the verdict for the defendant. The order also provided in the alternative that if the judgment for the defendant be reversed upon appeal, the verdict of the jury is to be set aside and a new trial granted. 2 The trial court stated the ground for the conditional granting of the new trial was the insufficiency of the evidence to justify the verdict. Banz appeals from the judgment n. o. v. and the alternative order granting a new trial.
The factual issues at trial concerned (1) the negligence of the defendant in lowering or allowing the lowering of the electrically operated overhead door in such a way that a customer would be injured, (2) the extent of injuries suffered by Banz, and (3) contributory negligence of Banz.
As to the alleged negligence of defendant which caused Mr. Banz to be struck on the head, the following facts were elicited at trial. Mr. Banz entered upon the premises of the auto dealership for the purpose of conducting some business in the service department pertaining to his account. As was the normal practice for service department customers, Banz, who was walking, entered through the entryway also used for vehicles. As he approached the entrance another individual passed him walking in the oppostite direction. Banz may or may not have addressed a greeting or words of recognition to this individual.
The motor-driven door was in the process of lowering at the moment Banz walked under it. The door struck him on the rear area of his head and Banz fell to his knees. Banz thereupon regained his feet, walked to the service manager's office and spoke to the service manager, informing him of the blow to his head from the door. Defendant's general manager was also present and both men testified that at that time Banz complained of being struck by the door.
The testimony showed that there were two sets of buttons which could activate the lowering of the door. One set was inside the doorway in the service area and the other set was located in the office area which was to the rear and side of the service area. The evidence did not established who, if anyone, activated the switch at the moment Banz entered. It was established that deliverymen as well as employees of the defendant customarily operated the door switches. There was no evidence which would indicate the door or the mechanisms connected to it were defective causing the door to lower without a person first pushing one of the buttons
Defendant attempted to establish that plaintiff had been contributorily negligent in not watching what has happening as he walked through the doorway. One witness testified she remembered Banz looking around and talking to some third person as he entered the doorway and was struck. There was indeed unrefuted evidence that a third person was exiting at the same time. There was also evidence the door emitted audible noise when it was moving and did so at the time of the accident. Banz insisted he heard no noise which would have alerted him to the danger and saw nothing to warn him. The record reflected that before the accident Banz possessed good hearing and vision. The evidence did not establish that the noise emitted by the door was sufficiently different from other mechanical noises coming from the auto service area so as to clearly warn someone entering or exiting through the door.
We affirm that part of the trial court's order, wherein a new trial was conditionally ordered in the event this court reversed the judgment notwithstanding the verdict.
The test to be applied by this court in reviewing a record to determine the correctness of a trial court's order granting a judgment notwithstanding the verdict is different from the test applied in reviewing a trial court's order granting a new trial. In the first instance, the record must be closely scrutinized to determine whether there is any evidence to sustain the verdict, and upon a motion for a directed verdict or for judgment notwithstanding the verdict the moving party admits the truth of the adversary's evidence and every inference of fact which legitimately may be drawn therefrom. I.R.C.P. 50(b); Loosli v. Bollinger, 90 Idaho 464, 413 P.2d 684 (1966). However, in the case of review of a trial court's order granting a new trial, the test to be applied by this court is whether the record discloses a manifest abuse of discretion by the trial court. Rosenberg v. Toetly 93 Idaho 135, 456 P.2d 779 (1969); Deshazer v. Tompkins, 93 Idaho 267, 460 P.2d 402 (1969).
We agree with the plaintiff that there was sufficient evidence, admittedly conflicting, before the jury, upon which it could have returned a verdict for the plaintiff on the issue as to defendant's negligence. I.C. § 13-219; Skaggs Drug Centers, Inc., v. City of Idaho Falls, 90 Idaho 1, 407 P.2d 695 (1965). Even though the evidence as to the plaintiff's damages is weak, it is our conclusion that the trial court erred in granting the judgment notwithstanding the verdict inasmuch as there was evidence of some damage to the plaintiff.
Examination of the record discloses no manifest abuse by the trial court in granting the motion for new trial, and the conditional order of the trial court in that regard is affirmed.
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