Barrett v. Stoneburg
| Decision Date | 11 November 1947 |
| Docket Number | 47108. |
| Citation | 29 N.W.2d 420,238 Iowa 1068 |
| Parties | BARRETT v. STONEBURG et al. |
| Court | Iowa Supreme Court |
Free Berry & Free, of Sioux City, for appellant Stoneburg.
Crary Munger & Crary, of Sioux City, for appellant Larsen.
Hatt & Huff, of Sioux City, for appellee Barrett.
Stewart & Hatfield, of Sioux City, for appellees Avery.
Defendant Stoneburg owned a two story building at 417 Pearl Street Sioux City. It was constructed about sixty years ago of a type of brick known as soft brick, with lime mortar. January 31, 1946, Stoneburg leased the property to defendant Larsen but did not give Larsen possession of the entire building until some time later. After May 1st, Larsen operated a beer tavern on the first floor. He subleased the second floor to Mr. and Mrs. Hansen for living apartments.
Joining the Stoneburg building on the north was another old two story brick building at 419 Pearl Street. It was owned by defendants Avery and occupied by defendant Avery Bros. Sign Co. Both buildings faced east. Each was 25 feet wide. The partition between them was a party wall.
October 11 1946, plaintiff Barrett, accompanied by his wife, drove his automobile to Sioux City, parked it at the curb in the street in front of these buildings, and left the vicinity. Shortly thereafter the buildings collapsed and fell of their own weight. Some of the debris fell upon and damaged the parked automobile. Plaintiff's action for such damages, against the owners and lessees of both buildings, resulted in verdict and judgment against all defendants. Defendants Stoneburg and Larsen have appealed.
Plaintiff's petition alleged (Count 1) the buildings were old and in a dangerous condition and unsafe for occupancy which fact was, or should have been, known to each defendant and defendants were negligent in failing to repair and (Count 2) defendants were negligent in the use and management of the buildings under their exclusive care and control. The petition also alleged defendants' negligence was the proximate cause of the collapse and the resultant damage to the automobile and that plaintiff was free from contributory negligence.
A police officer testified that after the collapse, 'the center of the two buildings was down in kind of a valley shape.' A photograph in evidence shows the two shattered roofs in the form of a broad V with its base along the line where the party wall had stood. It shows also the debris piled upon the adjacent sidewalk, street and parked automobiles, and in the wrecked interior. The city building inspector who examined the wreckage testified the partition (party) wall between the two buildings had squashed and settled about 42 inches and had breaks on both sides. 'The partition wall failed.' The giving way of this wall in the basement might have been the primary cause or a secondary cause. On cross-examination he testified the primary cause might have been the roof or second floor of either building collapsing.
Mrs. Hansen testified--they inspected the building early in April and moved into the second floor April 22--the walls were cracked and in bad shape--there were cracks in the corners and at the north--the floors bulged 'like the building come together'--they sloped and bulged and sagged and waved--the windows in the east part of the second floor were sagging down and this was called to the attention of Stoneburg and Larsen and they came up there and inspected the windows about a week after the Hansens moved into the building.
About 3 p. m. on October 11, she was ironing in her apartment at the west end of the building--she heard a little cracking or crackling noise in the north wall where it was cracked--heard people calling for help--saw things slipping in--it slipped to the south and east and this wall came down--when the north wall broke off it let that end of the floor down--the roof didn't fall in her apartment--it broke even at the north wall--some pipes fell upon her--the west end of the floor didn't fall in at that time--it broke beside the ironing board and fell in such a manner that she could see down--her husband came in with an axe and took her out down the back way.
For defendants, Avery testified the building at 419 Pearl Street appeared to be in good condition. Stoneburg testified he inspected his building when he bought it in 1945--knew of no structural defects then or later--noticed no cracks in the walls, bulging floors or other defects testified to by Mrs. Hansen--heard no complaints concerning its condition--never met Mrs. Hansen--had not inspected the second floor nor basement since he bought the building. Larsen testified the sash in the east window on the second floor was 'kind of rotted and dried out' but he observed nothing wrong with the window casing or other parts of the building. The builder who reconstructed the collapsed Stoneburg building testified for defendants, a possible cause of the collapse was that over a period of years the joists in the Avery roof sagged and the ends slipped off the bearing on the party wall and knocked it down.
The jury returned a general verdict for plaintiff and specially found by answers to interrogatories (1) That prior to the accident Larsen was able to see or know of the conditions or defects existing which produced the collapse. (2) That he knew the buildings were in an unsafe or defective condition. (3) That he should have known of the condition of the Stoneburg building. (4) That Stoneburg should have known of the condition of his building prior to the accident.
I. The only questions raised upon appeal relate to the sufficiency of the evidence to sustain the verdict against each appellant. Hence, the record will be considered in the light most favorable to plaintiff.
Larsen's lease provided he should keep the premises in as good repair as they then were or might be placed by Stoneburg, except major repairs to the roof (which Stoneburg made about April 29), that Larsen should have immediate possession of the second floor and of 'the balance of said building after present tenant is removed.' Larsen testified he secured possession of this 'blance' in April.
Plaintiff was a stranger or member of the general public whose automobile was damaged while lawfully parked in a public highway. The general rule in such cases is thus stated in Annotations in 7 A.L.R. 205 and 138 A.L.R. 1079:
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