Cable v. Fullerton Lumber Co., 47919

CourtUnited States State Supreme Court of Iowa
Citation242 Iowa 1076,49 N.W.2d 530
Docket NumberNo. 47919,47919
PartiesCABLE v. FULLERTON LUMBER CO., Inc., et al.
Decision Date16 October 1951

John R. DeWitt, of Griswold, and Wright & Kistle, of Council Bluffs, for appellant.

Jones, Cambridge & Carl, of Atlantic, and Hallagan & Lucier, of Des Moines, for appellees.

SMITH, Justice.

Plaintiff, on December 6, 1948, ordered a load of coal from defendant Company to be delivered in the basement of his home. The same day defendant Company's truck, with 2 1/2 tons of coal aboard, driven by defendant Wissler, came to the home. Plaintiff, on being notified, undertook (either on his own initiative or at defendants' request) to direct the movement of the truck in backing up to the coal chute at the west side of the house. In the operation he was pushed back against the house and seriously injured.

He alleges proximate negligence of the driver and his own freedom from contributory negligence. The trial court overruled defendants' motions to direct verdict and submitted the case to the jury but after verdict for plaintiff was returned, sustained defendants' motion for judgment notwithstanding verdict. Plaintiff appeals from the resulting judgment. The three fundamental questions always present in tort actions are the only ones involved on this appeal: Was defendant Wissler negligent? If so, was his negligence the proximate cause of plaintiff's injury? And was plaintiff himself free from contributory negligence?

Of course plaintiff had the burden of proof on all these issues. And equally well established is the proposition that when the issues arise on motion as questions of law plaintiff is entitled to have the evidence viewed in the light most favorable to him. We shall review the evidence with these rules in mind.

The Cable house faces north and had a bridal wreath hedge along its entire west side except for an opening at the coal chute. The ground slopes away to the west from the house. The coal chute is about at the middle of the west side of the house at an opening in the hedge about two feet wide. The mouth of the chute is cemented, has a four inch curbing on three sides with an outside measurement of 40 inches north and south and 22 inches east and west. Inside dimensions were 32 inches long north and south by 18 inches east and west.

The hedge was about three feet wide at the top. The opening in it at the coal chute was narrower than the north and south length of the mouth of the chute.

The chute was open and defendant Wissler intended to back the truck and empty the coal into it. The truck is described as a two-ton Chevrolet equipped with hydraulic dump bed. It is operated by a hydraulic lift. 'The loader raises the bed up and the load is dumped out of the back end.'

There was some conflict in the evidence as to just how near the truck would have to be to the chute in order to function properly. Evidence for plaintiff was to the effect it was necessary to have the rear end approximately seven feet from the house; for defendants, that the back end of the truck had to be even with the outer edge of the chute. This was about the only factual dispute.

Plaintiff's evidence is to the effect that when Wissler arrived with the coal he asked for plaintiff and when plaintiff appeared asked him to direct him while he backed into position to dump the coal directly into the chute.

Plaintiff testified: 'I went downstairs to help him. * * * Charlie had moved the truck. It was parallel to the house and I asked him what he wanted. He told me to stand there in that break in the hedge so he could see me and back the truck. There is a small opening in the back of the truck. He would have to be absolutely in line with this coal chute. I stood in the hedge where he told me.

'Mr. Wissler pulled the truck to the northwest, cut it too close and was out of line. Then I yelled and motioned for him to get it farther south. Then (he) pulled it up and didn't cut it as much and came in line as slow as the truck could run. * * *

'The truck, going as slow as it could, stopped almost, and suddenly accelerated. The rear end * * * was about two feet out from the west edge of the hedge * * *. He would have stopped probably six feet from the house, between six and seven feet he would have stopped at the edge of the hedge. * * *

'After the truck was backing toward me, I yelled: 'Whoa!' * * * as loud as I could three times in succession. The truck did not slow its * * * backward motion until it had pushed me into the house.

'As the truck came back towards, me, when I couldn't get out, I grabbed the truck with both hands, attempting to stop it and I was pushed into the house * * *. This arm slipped out but this one stayed in. That's the reason for the injury. * * * I was floundering in this coal hole, at least with one foot.'

The details of getting plaintiff's coat off, calling the doctor, getting him to the hospital, and the extent of his injury are immaterial here.

This is the only account of how the injury came about. Defendant Wissler testified as to the measurements and description of the truck. He says it had on chains that day, that the day was chilly and that there was snow on the ground 'just enough to make it white.'

He was not asked to explain how the injury occurred and plaintiff's account is the only one we have.

On cross-examination plaintiff said he stood in the break of the hedge directly behind the truck--'the only place you could be.' When asked why he could not have stood out to the left hand side of the truck so as to signal the driver and at the same time watch the chute plaintiff answered: 'After the truck had gotten so far it would be impossible to see the hole in the back end of it from a position on the side * * *. Back of the truck is the only place you could stand to line it up. If you stood over by the side * * * you couldn't see the back end of it after it went by you.'

He also said when he was starting to direct he stood at the outer edge of the hedge 'intending to step back behind the hedge and get out.' Later: 'I couldn't get out; the truck had pushed the hedge back enough so there was no alleyway between it and the house.'

It was suggested to him on cross-examination that he might have ducked under the truck bed as there was 'a four foot clearance the be could have hit the house before it would have hit' him if he had ducked. His reply: 'I could have gone through the coal chute if I would have.'

Plaintiff's wife and another lady in the house heard plaintiff 'holler' and heard the hit or bump 'that jarred the house.'

I. The question of proximate cause in this case cannot be considered apart from the issue of defendant's negligence. That is, the evidence, if sufficient on the issue of negligence, would have to be held sufficient on the issue of proximate cause.

II. We think this testimony we have outlined was sufficient to carry both questions to the jury. It was said in an early decision of this court: 'As in the nature of the case, the plaintiff must labor under difficulties in making proof of the fact of negligence, and as that fact is always a relative one, it may be satisfactorily established by evidence of circumstances, bearing more or less directly upon the fact of negligence, which might not be satisfactory in other cases, free from difficulty and open to clearer proofs; and this upon the general principles of evidence, which hold that to be sufficient or satisfactory which ordinarily satisfies an unprejudiced mind. 1 Greenl. on Ev. § 2.' Gandy v. Chicago & Northwestern R. R. Co., 30 Iowa 420; quoted in Garrett v. Chicago & Northwestern Ry. Co., 36 Iowa 121.

Defendant Wissler offers no explanation of what occurred. It is attempted, on cross-examination of plaintiff (as to statements elicited from him in the hospital), to develop a theory that the wheels of the truck were spinning and then acquired traction, causing the truck to come back suddenly. And we are asked to hold plaintiff has failed to make a case because this possibility is not directly negatived.

There is no testimony this really happened. There is at most evidence that plaintiff, long after the transaction, stated: 'But what I think happened, there was some snow on the ground...

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