Blakesley v. Standard Oil Co.

• Decision Date: 06 May 1921
• Docket Number: No. 33882.,33882.
• Citation: 182 N.W. 666
• Parties: BLAKESLEY v. STANDARD OIL CO.
• Court: Iowa Supreme Court

182 N.W. 666

BLAKESLEY

v.STANDARD OIL CO.^a1

No. 33882.

Supreme Court of Iowa.

May 6, 1921.

Appeal from District Court, Taylor County; W. K. Evans, Judge.

Action at law to recover damages for personal injury. Verdict and judgment for the plaintiff, and defendant appeals. Reversed.Nourse & Nourse, of Des Moines, and Flick & Flick, of Bedford, for appellant.

R. T. Burrell and Frank Wisdom, both of Bedford, for appellee.

WEAVER, J.

Clearfield is a town of about 500 inhabitants in Taylor county, and is situated on a line of the Chicago, Burlington & Quincy Railway. The course of the railway through the town is from the southwest to northeast. The original town plat and business part of the town are on the southerly side of the track and the portion north of the track is principally residence property. Washington street extends north and south through the east part of the original plat. On the northerly side of the track is North street, extending east and west. The point where the east end of North street abuts upon the northerly boundary of the railroad right of way is slightly farther east than the point where the north end of Washington street abuts upon the southerly side of such right of way. Though not clearly shown upon the plats in the record, it appears without dispute that between these two points is a recognized public way crossing the railway, being in effect an extension of Washington street to a junction with North street. Just east of the north end of Washington street and of the extension above mentioned is ground occupied by the defendant oil company, under lease or license from the railway company. At this point the oil company has erected and maintains certain buildings, tanks, and other structures. At the time now in question the oil company's business and property at this station was under the management and control of one Clute, its agent for that purpose. Among the company's buildings were two frame structures of considerable size standing at or near the west line of the street, and it is plaintiff's claim that they in fact protruded into the street. In conducting the business, Clute made use of a motortruck upon which there was a removable box or rack weighing several hundred pounds. When desiring to use the truck without the box, it was the agent's habit or practice to back the vehicle to the street side of the company's shed or warehouse and remove the box by lifting the front end and tipping it to the rear in such manner as to leave it standing on end inclining it to some extent against the building. On January 11, 1919, the box had been standing as described when it fell upon the plaintiff, then a boy of about 11 years, breaking his leg and otherwise bruising and injuring him.

[1][2] This action is brought to recover damages on the theory that the injuries so sustained by plaintiff are chargeable to plaintiff's negligence, in that the box or rack constituted a dangerous obstruction in the street and was also of a character to invite children to be upon or about it, thus bringing about the accident of which complaint is made. The defendant denies all charges of negligence made in the petition, and alleges that, if plaintiff sustained any injury from the fall of the box, the same was due to his own failure to exercise reasonable care. Without taking the time to cite the testimony of individual witnesses or quote their language, it is enough for the purposes of this appeal to say that the evidence is sufficient to justify the jury in finding that the defendant's building projected into the street, and that the place where the box was left standing was within the limits of the street, and was therefore to some extent a material obstruction to the public use of the way. It is to be admitted that the testimony upon this point is somewhat indefinite and uncertain, but we are satisfied with its sufficiency to take that question to the jury. If the box was thus left in the street, it was clearly an act of negligence, and, if the plaintiff was thereby injured without negligence on his part, his right to recovery is indisputable.

[3] Except the plaintiff himself, there is no eyewitness of the circumstances leading up to the fall of the box, though there was one or more witnesses not far away who saw the fall and hurried to the boy's relief. His story is to the effect that he had started out to visit a friend across the railway track, and as he approached the crossing a moving freight train was in the yard, and he stopped to wait for it to pass. In so doing he sauntered back a short distance on the walk or footpath and stopped at the upright truck box, and stood there with one foot on the ground, the other on the bottom crosspiece of the box, and one hand resting on a higher crosspiece, and in this position faced north toward the track. Standing there, he says he felt or saw the box move or tip, and, reaching up, tried to hold it and prevent its fall. Being unable to hold it up or divert its fall, he was caught...