Brown v. Sioux Bldg. Corp., 49135

• Citation: 83 N.W.2d 471,248 Iowa 948
• Decision Date: 04 June 1957
• Docket Number: No. 49135,49135
• Parties: Clarence BROWN, Appellee, v. The SIOUX BUILDING CORPORATION, Appellant.
• Court: United States State Supreme Court of Iowa

Page 471

83 N.W.2d 471

248 Iowa 948

Clarence BROWN, Appellee, v. The SIOUX BUILDING CORPORATION, Appellant.

No. 49135.

Supreme Court of Iowa.

June 4, 1957.

Baron, Brown & Yaneff, Sioux City, for appellant.

A. D. Clem, Chas. M. Gasser and Richard Rhinehard, Sioux City, for appellee.

WENNERSTRUM, Justice.

Plaintiff sought damages by reason of injuries sustained, resulting from a fall from a marquee erected over the entrance to the Commerce Building in Sioux City, Iowa. This portion of the building fell while the plaintiff was working on one of the brace rods which sustained the marquee. He based his case on the doctrine of res ipsa loquitur. The defendant denied the applicability of this doctrine and pleaded the plaintiff knew, or in the exercise of reasonable care should have known, the condition of the marquee and the rod upon which he was working at the time of the accident. Upon trial the cause was submitted only under the theory of res ipsa loquitur. The jury returned a verdict for the plaintiff in a substantial amount. Various motions were submitted by the defendant following the jury verdict, which were overruled by the trial court. From the judgment entered and the rulings adverse to the defendant it has appealed.

On August 24, 1954, the manager of the Commerce Building telephoned the Pioneer Iron Works in Sioux City and advised an individual connected with that company one of the support rods of the marquee on the building was rusted and asked that it be fixed. Thereafter, one of the owners of the Iron Works and the plaintiff, an employee of the company, got on top of the marquee which was some 16 feet above the street level. They checked the supporting connecting rod at the southwest corner. This rod was composed of two parts, one of which extended from the building proper down to and connecting with another rod that was embedded in the marquee. These rods were connected by interlocking eye-bolts at a point approximately 18 inches from the marquee roof. The owner of the Iron Works directed the plaintiff relative to what should be done to fix the supporting rods. No representative of the building company directed the plaintiff or his employer in regard to the manner in which the work should be done. The plaintiff was directed by his employer to weld a piece of metal across the two eye-bolts.

Later, and while preparing to do the suggested welding, the plaintiff used a chipping hammer to clean the rust and paint off the rods where they were joined by the interlocking eye-bolts. While he was doing this work, and only after he had chipped this portion of the rod two or three times, the rod pulled out from within the marquee causing it to fall down and towards the street.

The rod which extended into the marquee was welded or riveted to what is termed as a channel iron inside it. As a result of the fall of the marquee the plaintiff also fell and received injuries. The plaintiff testified regarding his observations after his fall, as follows: '* * * I looked up and I could see what should have been an angle had straightened out, and this angle should have been underneath the canopy to support it, and this was still connected to the eye-bolts I was working on. This angle must have been at least two feet from the eye-bolt I was working on. It wasn't at the eye-bolt that it gave way, it was from underneath the canopy that it pulled out, something that couldn't be seen. I never did see that angle iron until it was hanging in the air, while I was lying in the street immediately after my fall.'

As previously stated the plaintiff based his case on the doctrine of res ipsa loquitur. The defendant denied the applicability of this doctrine and pleaded the plaintiff knew or, in the exercise of reasonable care, should have known the condition of the marquee and the rods upon which he was working. By reason of the last claimed fact it was pleaded the plaintiff assumed the risk attendant to the work and the surrounding conditions. The plaintiff did not reply or deny the issue of assumption of risk until after he had rested his case and after the defendant had moved for a directed verdict. The plaintiff was permitted to file a denial of this last referred to issue over the objection of the defendant.

I. Inasmuch as the correctness of the submission of the issue of res ipsa loquitur is the paramount question in this case we shall consider first the applicable law and thereafter apply the facts in the present case.

The rule, known as the doctrine of res ipsa loquitur is to the effect that, where the thing which caused an injury is shown to be under the management of a defendant or his servants and when the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it consequently affords reasonable evidence, in the absence of explanation of defendant, that the accident arose from want of proper care. 65 C.J.S. Negligence § 220(2), p. 987.

And it is stated in 65 C.J.S. Negligence § 220(8), p. 1006, as follows: 'In order to render the doctrine of res ipsa locquitur applicable it is necessary to show an accident or injury, the physical cause of the injury, and the attendant circumstances must indicate such an unusual occurrence as in the light of ordinary experience would presumably not have happened if those who had the management or control of the physical cause had exercised proper care.'

And in the last cited section, at page 1007 it is further stated: 'In conformity with the general statements of the rule as discussed supra § 220(2), the doctrine is applicable only where the physical cause of the injury and the attendant circumstances indicate such an unusual occurrence that in their very nature they carry a strong inherent probability of negligence and in the light of ordinary experience would presumably not have happened if those who had the management or control had exercised proper care.' (Emphasis supplied.)

This court has summarized the necessary features which make applicable the doctrine of res ipsa loquitur in Young v. Marlas, 243 Iowa 367, 371, 51 N.W.2d 443, 445. It '* * * is the name for logal principal which permits an inference of defendants' negligence upon proof that establishes (1) defendants' exclusive control and management of the instrumentalities causing the injury, and (2) the occurrence was such as in the ordinary course of events would not have happened without negligence on the part of defendants. * * *' Citing, Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 11 A.L.R.2d 1164 and cases there cited. See also to the same effect, Sample v. Schwenck, 243 Iowa 1189, 1198, 54 N.W.2d 527.

The case of Francisco v. Miller, 14 N.J.Super. 290, 81 A.2d 803, 805, is quite an point and we shall quote a portion of that opinion by reason of the similarity of facts and their application to the law. 'On June 7, 1950, while pursuing a preliminary examination of the proposed alterations, Mr. Herman first stepped out of the window onto the platform of the fire escape, and when the plaintiff, who immediately followed him, came upon it, the platform collapsed. Both Mr. Herman and the plaintiff fell to the surface of the alleyway beneath, resulting in the death of Mr. Herman and bodily injury to the plaintiff. * * * Although the owner or occupier of the premises is not an insurer, he is liable for the injurious consequences suffered by an invitee by reason of defects of which he has knowledge or of defects which have existed for so long a time that, by the exercise of reasonable care, he had both an opportunity to discover and to remedy. Schnatterer v. Bamberger & Co., 81 N.J.L. 558, 79 A. 324, 34 L.R.A.,N.S., 1077 (E. & A.1911); Thompson v. Giant Tiger Corp., 118 N.J.L. 10, 189 A. 649 (E. & A.1937); Daddetto v. Barbiera, 4 N.J.Super. 479, 67 A.2d 691 (App.Div.1949); Oelschlaeger v. Hahne & Co., 2 N.J. 490, 66 A.2d 861 (1949); Restatement, Torts, N.J.Anno., § 343 (1940).

'It is within the compass of the abovementioned principles of duty and liability that we consider the probative scope of the evidence in the present case.

'Assuredly it could not have been reasonably inferred by the jury from any of the evidence that the decedent had actual notice or knowledge of the obscure defective condition and nevertheless fraudulently concealed his knowledge and deliberately jeopardized his own safety.

'Our inquiry therefore necessarily converges upon the question whether in any logical aspect of the evidence the defective condition had existed for so long a time that, by the exercise of reasonable care by the defendants' decedent, he had both the opportunity to discover and to remedy it. * * * 'The inference is irresistible that the corrosion of the angle bars was indiscoverable except by means of some extraordinary investigation. * * *

'We are of the opinion that fair-minded men would not logically infer and honestly resolve that in all the uncontroverted circumstances of the present case the defendants' decedent was guilty of culpable neglect in not observing a defective condition so hidden in such a period of time and thus failed to exercise the care and precaution commonly employed by a person of reasonable foresight, vigilance, and prudence. Vide, Gentile v. Public Service Coordinated Transport, 12 N.J.Super. 45, 78 A.2d 915 (App.Div.1951). * * *'

Another case which has similarity to the one now before us is that of Miller v. Hickey, 1951, 368 Pa. 317, 81 A.2d 910, 914. In this cited case the plaintiff was working on a fire escape for the purpose of cleaning, brushing and scraping it preparatory to painting it. He had continued his work for a short period of time and then decided he needed some paint and turned around and put his left hand on an outside rail which gave way. Plaintiff grabbed with his right hand to hold on but fell head first to the sidewalk.

In the cited case it is stated: 'An owner or possessor of...