Capener v. Duin

• Decision Date: 09 December 1969
• Docket Number: No. 53728,53728
• Citation: 173 N.W.2d 80
• Parties: Wendell CAPENER and Betty Capener, Appellees, v. Peter G. DUIN and Leora M. Duin, Appellants.
• Court: Iowa Supreme Court

Page 80

173 N.W.2d 80

Wendell CAPENER and Betty Capener, Appellees, v. Peter G. DUIN and Leora M. Duin, Appellants.

No. 53728.

Supreme Court of Iowa.

Dec. 9, 1969.

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellants.

James, Greer, Nelson & Bertell, Spencer, for appellees.

LARSON, Justice.

This is an appeal from two actions brought separately by Wendell Capener and his spouse Betty Capener, tried jointly by agreement of the parties. The basis of both damage claims against defendants is a fall by plaintiff-invitee on icy porch steps leading to a mailbox at defendants' residence. Trial was to the court and resulted in a judgment against the defendants and in favor of plaintiff Wendell Capener in the sum of $17,050 and in favor of plaintiff Betty Capener in the amount of $500.

Appellants contend (1) that the verdicts are not sustained by sufficient evidence in the record and are contrary to law, (2) that the plaintiff Wendell Capener was contributorily negligent as a matter of law, (3) that the plaintiff Wendell Capener voluntarily assumed the risk in walking on the icy steps, and (4) that the court erred in the admission of certain evidence relating to how such ice accumulated on the porch steps. After a careful review of the record, we affirm both judgments.

I. Generally, questions of negligence, contributory negligence, and proximate cause are for the finder of fact; it is only in exceptional cases that they are decided as a matter of law. Rule 344(f)(1), Rules of Civil Procedure.

In considering the sufficiency of the evidence to sustain a judgment for plaintiff, we must view the evidence most favorable to him. Clark v. Marietta, 258 Iowa 106, 109, 138 N.W.2d 107, 109; Brooks v. Dickey, Iowa, 158 N.W.2d 11, 13.

II. From the record we learn that Wendell Capener, whom we shall refer to as plaintiff herein, is a 40-year-old mail carrier at Spencer, Iowa, and had been so employed for the past eight years. On December 26, 1964, he was assigned to the route which included defendants' residence. He delivered mail to this residence on December 29 and 30, and on the 31st the accident occurred which gave rise to these claims. During that week there had been intermittent periods of snow and sunshine, and the temperature ranged between 4 and 36 above zero. Icy conditions prevailed throughout the area during this period. Freezing and thawing occurred usually at midday. There was about 4 inches of snow on the ground, but none on the walk, steps or porch at the time. December 31st was a sunny day with good visibility.

Defendants' mailbox was on an open porch to the left of the path to the front door. To reach it from the street one must traverse a cement walk, climb four steps to the porch, and then take about four steps to the left. The plaintiff recalled nothing unusual about the condition of the steps or porch on December 30th, the day before this accident. However, he testified that if he had slipped on that date at that place he would have remembered the icy spot, which he did not.

On December 31st plaintiff was dressed in a winter wool uniform and his boots had gum-rubber waffle soles. As he went up defendants' steps he noticed some ice on them, but said he did not realize the extent or slickness of the ice until after he had fallen. It did not appear to present a situation different from that which mailmen must accept in order to deliver the mail in that area during that time of the year. He did not recall seeing any abrasive material such as sand, salt or sawdust, on the surface of the steps or porch on that occasion. Although he pays attention to the condition of steps on his route, he did not stop and examine them at each of the 400 residences he served.

Plaintiff had a full load of about 25 to 30 pounds of mail in his shoulder bag as he traversed the steps at defendants' home. He also had some mail in his hand as he attempted to leave. There was no hand rail along the four steps leading to the open porch, and the porch railing was too low to use for support. Except for those steps, there was no other way to reach the mailbox from the street. On this occasion plaintiff testified he walked up the steps, crossed the porch, deposited the mail in the box, and started back. As he stepped off the top step with his left foot, his right foot slipped out from under him and he went down. After he fell, he observed the surface of the steps and porch and testified the entire surface was covered with smooth ice ranging from one half to one inch in thickness. It was very slick.

After plaintiff fell, he summoned Mrs. Duin and asked her to call the post office for help. When help came, he was taken to the doctor's office. In the fall plaintiff's lower back struck the concrete and, in the opinion of Dr. Blenderman, Mr. Capener has a partial ruptured disk at the L--5 level.

Plaintiff's fall occurred about noon, and the superintendent of mails who answered the call for help said that when he arrived he observed a lot of ice on the stops and a rug that had been thrown over the first two or three steps and on the end of the porch. He remembered no sand, salt, or other abrasive material at that time. A little later the postmaster observed the scene and noticed some sawdust on the walks. He did not know how long it had been there, although it appeared to be fresh. He had no problem then of seeing the ice on the porch and steps and noted it was smooth and slippery.

The defendants who owned the property recalled the incident when Mr. Capener fell. Mrs. Duin did not recall taking particular precautions right after the accident such as spreading rugs and sawdust, but assumed they did. She said they were well aware of the situation relative to their steps and sidewalk and would shovel and sand them when at all possible. They knew the paper boy delivered the paper to the front door and their children often used that entrance. She knew the porch and steps were slick and slippery and, although they kept abrasive material for that purpose, she did not remember putting sawdust or sand on them that day.

Mr. Duin testified he examined the front porch area later in the afternoon and observed a patch of ice in the middle of the porch, two, three or four feet square, but did not recall having examined the area in the morning of December 31st. He testified that he had put a sand mixture on the area the day before but not that morning.

Mr. Paul Schwarck testified that he had been a mail carrier for 24 years. He was acquainted with defendants' property and observed how rain and snow descended onto the porch and steps from the house roof and caused water to collect on the porch and steps where it could turn to ice. He said he also delivered mail to that address on December 30th. At that time he observed ice on the steps and porch and said they had to walk over it to get to defendants' mailbox.

Certain exhibits were introduced and received showing the steps and slanted roof on the house from which rain and snow could reach the porch and steps. The trial court, on invitation, visited the premises. Weather reports showed there had been a great deal of sleet and freezing rain in that area on December 29, and on December 30 there was a glaze of ice on the highways.

No issue is raised in this appeal as to plaintiff's present condition, as to the extent of his injuries, or as to the amount of the judgments rendered if liability exists.

The trial court held this evidence was sufficient to sustain a finding that, although plaintiff saw the ice, he did not realize its extent and slickness when he attempted to perform his duty to deliver the mail, and that defendants knew or should have known he would not realize the situation and should have taken steps to warn or protect him from the hazard. Thus, the nub of this controversy seems to be, not as to whether there was some ice on the steps and porch, but as to the extent and condition of the ice thereon and the knowledge chargeable to the parties as to that condition.

III. Since the opinion rendered in Hanson v. Town and Country Shopping Center, Inc., 259 Iowa 542, 144 N.W.2d 870, we have been committed to the rule that the occupier of real estate is not relieved of liability simply because his invitee was injured by an open, obvious, or known defect or condition, if it appears the invitee, acting reasonably, would not have discovered, realized, or appreciated the danger. We based this determination on the language used in sections 343 and 343A, Restatement, Second, Torts, which provides: '(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness * * *.' We noted there: '(b) The word 'known' denotes not only knowledge of the existence of the condition * * *, but also appreciation of the danger it involves. Thus the condition * * * must not only be known to exist, but it must also be recognized * * * by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence and judgment.'

Although different results on different fact situations have been reached, the principle just announced has been adhered to in all recent pronouncements. See Adams v. R. S. Bacon Veneer Co., Iowa, 162 N.W.2d 470, 473; Chevraux v. Nahas, 260 Iowa 817, 823, 150 N.W.2d 78, 81; Hanson v. Town and Country Shopping Center, Inc., supra, 259 Iowa 542, 549, 144 N.W.2d 870, 874--875; Knudsen v. Merle Hay Plaza, Inc., Iowa, 160 N.W.2d 279, 282; Meader v. Paetz Grocery Co., Inc., 259 Iowa 1101, 1106--1107, 147 N.W.2d 211, 215; Smith v. J. C. Penney Co., 260 Iowa 573, 585--586, 149 N.W.2d 794, 801; Weidenhaft v. Shoppers Fair of Des Moines, Inc., Iowa, 165 N.W.2d 756, 759; Ling v. Hosts Inc., Iowa, 164 N.W.2d 123, 127; 54 Iowa L.Rev. 659.

In Hanson v. Town and Country Shopping...