Bradt v. Grell Const., Inc.

• Decision Date: 17 September 1968
• Docket Number: No. 53006,53006
• Citation: 161 N.W.2d 336
• Parties: Raymond K. BRADT, Appellee, v. GRELL CONSTRUCTION, INC., and Donald E. Grell, Appellants.
• Court: Iowa Supreme Court

Page 336

161 N.W.2d 336

Raymond K. BRADT, Appellee, v. GRELL CONSTRUCTION, INC., and Donald E. Grell, Appellants.

No. 53006.

Supreme Court of Iowa.

Sept. 17, 1968.

Hansen, Wheatcraft & McClintock, Des Moines, for appellants.

Johnson, Burnquist & McCormick, Fort Dodge, for appellee.

MASON, Justice.

This is a negligence action in two divisions by Raymond K. Bradt to recover for personal injuries sustained when a truck owned by defendant Grell Construction, Inc. and driven by defendant Donald E. Grell struck a tree on plaintiff's premises which fell on him. In seeking recovery plaintiff pleads specific acts of negligence in one division and relies on the theory of res ipsa loquitur in the other.

For convenience where appropriate the corporation will be referred to as defendant and its president, Donald E. Grell, as Grell.

In motions for directed verdict made at close of plaintiff's evidence and renewed at the close of all evidence, defendants asserted plaintiff had failed to establish by any competent proof defendants were negligent in any of the particulars alleged; facts and circumstances under consideration did not warrant application of res ipsa loquitur; and plaintiff was guilty of negligence in the respects alleged as an affirmative defense which was a proximate cause of his injuries and resulting damages.

The trial court withdrew all pleaded specifications of negligence except failure to maintain a proper lookout and have the motor vehicle under control and overruled defendants' motion in other respects.

Plaintiff also moved for directed verdict and in the alternative moved to strike and dismiss from defendants' answer those paragraphs of each division in which defendants alleged as an affirmative defense plaintiff was guilty of certain specific acts of negligence which was a proximate cause of the accident and injuries of which he complains. The trial court sustained plaintiff's motion to withdraw affirmative defenses and submitted the matter on the two specifications of negligence and under the doctrine of res ipsa loquitur.

Trial to a Webster County jury resulted in a favorable verdict for plaintiff. The jury was not asked to answer by special interrogatory whether its verdict was based on a finding of negligence or negligence under the doctrine of res ipsa loquitur. After overruling defendants' motions for judgment notwithstanding the verdict and in the alternative for new trial, judgment was entered against defendants on the verdict.

I. Defendants appeal, assigning seven errors relied upon for reversal. Summarized in the order considered rather than as argued, defendants contend the trial court erred in (1) submitting to the jury plaintiff's pleaded specifications of negligence of failure to keep a proper lookout and lack of proper control and, under the doctrine of res ipsa loquitur, (2) failing to sustain their motion for directed verdict, (3) withdrawing affirmative defenses which raised the question whether plaintiff was guilty of negligence which was a proximate cause of his injuries and (4) giving instruction 15 to which defendants had made timely objections.

To put the matter differently, defendants' appeal presents the questions whether there was a jury issue on defendants' negligence; whether the doctrine of res ipsa loquitur was applicable here; and whether there was evidence of plaintiff's negligence that would constitute a defense to the action.

It is the duty of the trial court to submit to the jury all issues presented by the pleadings upon which there is evidence tending to support them. Of course, it is reversible error to submit an issue having no support in the record. McClenahan v. Des Moines Transit Co., 257 Iowa 293, 296, 132 N.W.2d 471, 473; Campbell v. Martin, 257 Iowa 1247, 1251, 136 N.W.2d 508, 511; and Walker v. Sedrel, 260 Iowa 625, 149 N.W.2d 874, 878.

In considering whether there is evidentiary support for an instruction on pleaded specifications of negligence we give the evidence the most favorable construction it will reasonably bear. Campbell v. Martin, supra; Schneider v. Swaney Motor Car Co., 257 Iowa 1177, 1182, 136 N.W.2d 338, 341, and citations in these opinions.

Even when the facts are not in dispute or contradicted, if reasonable minds might draw different inferences from them a jury question is engendered. Citation of authority is unnecessary. Rule 344(f) 17, Rules of Civil Procedure.

II. Several years prior to the accident from which this action arose, plaintiff, a Fort Dodge veterinarian, had purchased an acreage and homesite located in a wooded area north of Fort Dodge. Before the accident he had hired defendant to do grading work for him, bought dirt and had Grell haul it to pieces of the acreage. Plaintiff had also frequently purchased used lumber from defendant.

On December 29, 1964, Grell, pursuant to prior arrangements with plaintiff, was in the process of delivering a trailer load of planks to the building site. To get there it was necessary to enter the premises through a gate at the southeast corner of the property and then proceed northwesterly to a shed where defendant had made previous deliveries of materials. There was a lane leading from the gate to the storage shed. It was not graveled, just had packed earth, and it was neither graded up nor cut down. As you come through the gate from the road adjoining the property to the east, the terrain drops off slightly to the west. There are numerous trees in the area. From the gate, the lane runs west 10 to 15 feet, then curves around or between these trees a little northwesterly, but mostly north.

West of the gate 30 to 35 feet was a bent tree. North of this bent tree was a rotten tree, the one which, when struck by defendant's truck, fell on plaintiff.

The day of the accident, the weather was clear but rather cold. The surface of the ground and lane was covered with 'a layer of crusty snow; snow that may have been melted somewhat by the sun and then frozen again'. It was two or three inches deep and as you walked it would crunch. Plaintiff had done nothing about grading, shoveling or removing the snow to open the driveway.

Dr. Bradt rode to the premises with Grell's cousin, Charles Grell, an employee of the corporation, arriving ahead of the truck driven by Donald Grell. When plaintiff and Charles Grell arrived they proceeded to chase Dr. Bradt's horses away from the gate to the northwest part of the premises so the animals would not get on the road when the gate was opened.

About this time Grell arrived with his load. He was driving an 18-foot 1955 Chevrolet Cab-over tractor, and 34-foot Edsel lowboy, which with its load of lumber was about 54 feet long, weighing between 27 and 30 tons.

On his arrival, Grell opened the gate and 'sized it for getting in'. The clearance was roughly ten feet and the truck eight feet wide. Because of the length of the load Grell said he 'had to juggle her' to get through the gate. The truck was equipped with California mirrors six inches wide and a foot long on both sides.

When plaintiff and Charles Grell returned from chasing the horses, plaintiff went to a point some 45 feet west of the gate to see what was going on. By that time apparently Grell had the truck ready to approach. Charles Grell watched defendant's truck coming through the gate to make sure it would clear the south post. Grell had stationed two of his men inside the gate to watch as he drove the truck through.

After maneuvering into position, Grell started through the gate 'in first gear, which is the lowest gear, actually riding the brakes and slipping the clutch and just barely moving' as there wasn't going to be a lot of room to spare. Defendant, using the mirrors going through the gate, could see the fence on the left but not on the right. Passing through the opening, an outrigger on the right side of the trailer, about three quarters of the way from the tractor front, rubbed the north gatepost. At that moment one of Grell's men yelled, 'Whoa'. Grell applied his brakes. In stopping, the vehicle slid sideways approximately two to three feet, broke the post and the front bumper bracket of the truck struck the rotted tree previously referred to, causing it to fall northwesterly on plaintiff. The right bumper brackets were torn off on impact but the truck was not otherwise damaged.

Plaintiff sustained substantial injuries and brought this suit to recover. Defendants on appeal neither question the extent of plaintiff's injuries nor claim the award of $22,500 is excessive. Errors assigned relate to issues of liability.

III. Defendants had the duty to exercise ordinary care in maintaining a 'proper lookout' for plaintiff whose presence was known by the truck driver at the time and for all objects which might conflict with his operating the motor vehicle in the area. A breach of that duty would constitute negligence.

Keeping a proper lookout is not a statutory duty in Iowa but motorists have a common-law duty to exercise ordinary care under the circumstances in maintaining a lookout. Mathews v. Beyer, 254 Iowa 52, 57, 116 N.W.2d 477, 480; McClenahan v. Des Moines Transit Co., supra, 257 Iowa at 297, 132 N.W.2d at 474. Proper lookout means more than merely to look and see an object. It implies being watchful of the movements of the driver's vehicle in relation to other things seen and which could be discerned or seen in the exercise of ordinary care. It involves care, watchfulness and attention of the ordinarily prudent person under the circumstances. Mathews v. Beyer, supra, 254 Iowa at 57, 116 N.W.2d at 480; McClenahan v. Des Moines Transit Co., supra, 257 Iowa at 297, 132 N.W.2d at 474; Schneider v. Swaney Motor Car Co., supra, 257 Iowa at 1183, 136 N.W.2d at 342; and Campbell v. Martin, supra, 257 Iowa at 1251--1252, 136 N.W.2d at 511, and citations in these cases.

The word lookout as used in connection with operation of a motor vehicle has no technical legal...