Blakesley v. Standard Oil Co.
| Decision Date | 06 May 1921 |
| Docket Number | 33882 |
| Citation | 187 N.W. 28,193 Iowa 315 |
| Parties | GILBERT BLAKESLEY, Appellee, v. STANDARD OIL COMPANY, Appellant |
| Court | Iowa Supreme Court |
OPINION ON REHEARING MARCH 11, 1922.
Appeal from Taylor District Court.--HIRAM K. EVANS, Judge.
ACTION at law to recover damages for personal injury. Verdict and judgment for the plaintiff and defendant appeals.
Reversed.
Nourse & Nourse and Flick & Flick, for appellant.
R. T Burrell and Frank Wisdom, for appellee.
DE GRAFF, J.
The damages sought to be recovered are for personal injuries predicated on the negligence of the defendant. Upon the trial in the lower court the defendant offered no evidence and the questions presented upon this appeal arise solely upon the plaintiff's evidence. No timely or legal exceptions were taken by appellant to the instructions given by the trial court.
The verdict was returned April 29 and the court granted defendant 30 days to file motion for new trial. In defendant's motion for new trial error is assigned in the giving of certain instructions, but this motion was filed seven days after the verdict was returned. Nor do we find in appellant's assignment of errors in this court any specific assignment predicated on the giving or refusing of instructions. Instructions to which no exceptions are taken and preserved constitute the law of the case. Seevers v. Cleveland Coal Co. 158 Iowa 574, 138 N.W. 793. This court will not accept an invitation to enter upon a discussion of the soundness of any instruction when it stands unchallenged in the lower court or when there has been a failure to take and preserve exceptions in the manner provided by law. Chapter 24, Acts of the Thirty-seventh General Assembly. Extension of time to file a motion for new trial does not operate to extend the time for filing exceptions to instructions.
Henry v. Henry, 190 Iowa 1257, 179 N.W. 856.
See also, State v. Smith, 192 Iowa 218, 180 N.W. 4; Gibson v. Adams Express Co. 187 Iowa 1259, 175 N.W. 331; In re Estate of Rule, 178 Iowa 184, 159 N.W. 699; Haman v. Preston, 186 Iowa 1292, 173 N.W. 894.
The instruction against which complaint is lodged by appellant has reference to a rule governing "attractive nuisance" cases. The case at bar does not fall within the principle stated but the instruction not being properly challenged the claimed error does not fall within the purview of this appeal.
At the conclusion of the evidence the defendant moved the court to direct the jury to return a verdict for the defendant primarily upon the following grounds: (1) That there is no evidence proving or tending to prove any negligence on the part of the defendant, its agents, or employees, or the breach of any duty that defendant owed the minor plaintiff. (2) That the evidence shows the accident in question was occasioned by the fault and negligence of the plaintiff. (3) That plaintiff's cause of action is grounded upon the doctrine known in the state as "turntable" or "attractive nuisance" cases, but there is no evidence that brings the case within that rule. (4) That the evidence shows that the accident occurred while the minor plaintiff was a trespasser upon the premises of the defendant. This motion was overruled and proper exceptions were taken and preserved.
Should the motion have been sustained? If yea, then reversible error was committed, which was not cured subsequently by the giving of instructions to which timely exceptions were not taken. If the plaintiff was a trespasser at the time and place in question then he may not recover regardless of the alleged negligence of the defendant.
This accident happened in Clearfield, Iowa a town of about 500 inhabitants. The course of the Burlington Railway through the town is from southwest to northeast. Washington Street extends north and south, and north of the railway track a short distance 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 this right of way.
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 defendant oil company erected and maintained certain buildings, tanks and other structures. Among the company's buildings were two frame structures of considerable size standing near the west line of the street so extended, and it is the claim of plaintiff that they in fact protrude or extend into the street. In conducting the business of the defendant company the manager made use of a motor truck upon which there was a removable box. When it was desired to use the truck without the box the truck was backed to the street side of the company's warehouse and the box was removed by lifting the front end and tipping it to the rear in such a manner as to leave it standing on end inclining against the building. This was the place and the position of the box when it fell upon the plaintiff.
It is alleged in plaintiff's petition that the defendant "maintained buildings, erections and structures under and by virtue of a lease made with the railroad company on the right of way of the Chicago, Burlington & Quincy Railroad Company and abutting on Washington Street in the town of Clearfield" and "defendant through its agent, servant, employee and manager, did negligently, carelessly and in violation of law and right, through said agent, servant, employee, and manager, maintain a heavy structure, to wit: a dray wagon box, leaning upon and against one of its buildings at said place in such manner that it was an obstruction to the street and an invitation to children to be upon it or about it." 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.
It is claimed by plaintiff that the defendant was occupying a part of Washington Street in the town of Clearfield but there is no evidence tending to prove that the wagon box in question was on said street, or that it obstructed the street. The most that can be said is that the defendant's plant and some of its buildings including the building against which the wagon box was placed were near the alleged street. The official plat of the town of Clearfield shows that Washington Street ends at the south margin of the railroad right of way. The Taylor County atlas which was in common use also shows that Washington Street in the plat of Clearfield ends at the south margin of the railroad right of way. There is no street shown for a considerable distance north of the railroad right of way except North Street running east and west, and which bears northeast shortly after it passes the point which would be crossed by Washington Street, if that street were extended so that it would cross the right of way.
The testimony of plaintiff's witnesses shows no more than their guesses on the subject. In the cross-examination of Mr. Blakesley he testified that the building against which the wagon box leaned There are no sidewalks along the street where these buildings are located on either side of the street. There is a defined roadway which is a continuation of Washington Street that crosses the railroad.
The evidence fairly shows that Washington Street did not cross the railroad right of way, but ended at the south line of the right of way. The fair import of plaintiff's witnesses on this subject is that "it looked to them as though Washington Street if extended would cut off about a foot and a half of the southwest corner of one or both of defendant's buildings." This was a mere supposition. The location of a street cannot be determined by mere "sighting," especially so when the official plats show it to be otherwise.
In Capital City Inv. Co. v. Burnham, 143 Iowa 134, 121 N.W. 708 the civil engineer who made the survey of the line did not examine the original plats, nor go to the original monuments, but assumed as correct the location of the curbing put in by the city and the lot lines as improved by various owners. His survey did not correspond with the original plat, but the latter controlled.
The railroad company had permitted the public for many years to cross its right of way at that point and the crossing had been planked for the convenience of the public. The most that can be said is that an easement existed for the purpose of public...
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Blakesley v. Standard Oil Co.
...remanded to the district court for a new trial. Reversed.EVANS, C. J., and PRESTON and DE GRAFF, JJ., concur. a1. Superseded by opinion 187 N. W. 28. ...