Christianson v. Kramer

• Decision Date: 08 June 1965
• Docket Number: No. 51564,51564
• Parties: Harold CHRISTIANSON, Appellant, v. Donald KRAMER, d/b/a Kramer Shoe Repair Shop, and Arthur A. Neu, Executor of the Estate of Adda Beverly, Appellees.
• Court: Iowa Supreme Court

Page 644

135 N.W.2d 644

257 Iowa 974

Harold CHRISTIANSON, Appellant, v. Donald KRAMER, d/b/a Kramer Shoe Repair Shop, and Arthur A. Neu, Executor of the Estate of Adda Beverly, Appellees.

No. 51564.

Supreme Court of Iowa.

June 8, 1965.

Wunschel & Schechtman, Carroll, for appellant.

Leighton A. Wederath, Carroll, for appellee Donald Kramer, d/b/a Kramer Shoe Repair Shop.

Floyd E. Page, Denison, and Edward S. White, Carroll, for appellee Arthur A. Neu, Executor of the Estate of Adda Beverly.

GARFIELD, Chief Justice.

Plaintiff brought this law action to recover for personal injury from falling on an icy step leading to a basement shoe repair shop of defendant Donald Kramer. Defendant Neu was executor of the estate of Adda Beverly, owner of the building, in the business district of Carroll. Trial resulted in judgment on jury verdict for defendants from which plaintiff appeals.

The first trial of the case ended in judgment on directed verdict for defendants. On plaintiff's appeal we reversed that judgment and remanded the case for another trial from which the present appeal resulted. Christianson v. Kramer, 255 Iowa 239, 122 N.W.2d 283. Evidence upon the two trials was quite similar. Since the cited opinion fully recites the evidence upon the former trial, extended statement of the evidence at the later trial is deemed unnecessary.

Prior to the former trial a declaratory judgment action was also commenced and tried as to whether defendant Kramer's liability, if any, to plaintiff was insured by a certain liability policy. That case was also appealed. Pacific Insurance Co. v. Christianson et al., 253 Iowa 241, 111 N.W.2d 679.

There was one step between the sidewalk along the front of the building in question and a platform leading to the remaining eight steps to the basement. Plaintiff started to descend the steps about 10 a.M. on January 6, 1960, carrying a cup of hot coffee in each hand. As he was doing so a lady emerged from the shoe repair shop and ascended the steps. Plaintiff moved to his right (west) to allow the lady to pass and slipped and fell on a patch of ice about a foot wide at the west end of the fourth or fifth step. The steps were 40 inches in width. Plaintiff cut his left wrist in the fall and suffered severe and permanent injury.

A stone ledge between the first and second stories of the brick building protruded from the front wall about a foot. Snow accumulated on this ledge and when it thawed water from the ledge dripped onto the steps below, forming ice when it froze. Snow had fallen a few days before January 6 and, the jury could find, the ice on which plaintiff fell was caused by dripping from the ledge.

I. Plaintiff's first assigned error is in the trial court's refusal to admit evidence of prior accidents. Plaintiff called defendant Kramer as his witness and asked him, 'Before this accident did you have someone else fall on these steps on the ice?' The court sustained the objection of Kramer's counsel as irrelevant and immaterial.

It is now well settled in Iowa that evidence of prior accidents at the same place or with the same instrumentality under substantially similar conditions is admissible as tending to show a dangerous and unsafe condition and knowledge thereof by the offending party. Jackson v. Chicago, M. St. P. & P. R. Co., 238 Iowa 1253, 1264, 30 N.W.2d 97, 103, and citations; Berk v. Arendts, 254 Iowa 363, 370, 117 N.W.2d 905, 909, and citations; Mead v. Scott, 256 Iowa ----, 130 N.W.2d 641, 644. See also Anno. 70 A.L.R.2d 167, 172. The Berk and Mead opinions say that for such evidence to be admitted it must appear conditions were comparable and the occurrences not too remote. See also Anno. 70 A.L.R.2d, supra, at pages 198, 208.

There are two reasons why the ruling complained of was not reversible error. First, no offer of proof was made and we have no way of knowing what the witness' answer would have been--it may have been negative. Obviously a new trial should not be granted to permit an answer that might be unfavorable to plaintiff. Olson v. New York Life Ins. Co., 229 Iowa 1073, 1077, 295 N.W. 833, 835; Sewell v. Lainson, 244 Iowa 555, 559, 57 N.W.2d 556, 559; 5 Am.Jur.2d, Appeal and Error, section 604, page 70.

In the second place, it can hardly be said the question called for evidence of prior falls under substantially similar conditions at a time not too remote. The claimed prior falls may have occurred at night when the steps were completely covered with ice or under other dissimilar conditions several years before plaintiff fell. See in this connection Crouch v. National Livestock Remedy Co., 205 Iowa 51, 63-64, 217 N.W. 557, and citations; 32 C.J.S. Evidence §§ 583-584; 20 Am.Jur., Evidence, section 305; Anno. 70 A.L.R.2d 167, 198, 208.

II. Plaintiff's second and fourth assignments of error are in the exclusion from evidence of a copy of his income tax returns for 1959 and 1960 and testimony as to the fair and reasonable value of medical, hospital and nursing service the Veterans Administration furnished plaintiff in treating his injuries.

In view of the verdict for defendants these rulings may not be deemed prejudicial. The jury evidently found defendants were not liable to plaintiff. As plaintiff's counsel conceded in argument, the verdict could hardly have been based, even in part, on a finding plaintiff was not injured or damaged. These claimed errors go to the measure, not the right, of recovery. As frequently said, the errors, if any, were cured by the verdict for defendants. Janvrin v. Broe, 239 Iowa 977, 983, 33 N.W.2d 427, 431; Shannon v. Gaar, 234 Iowa 1360, 1365, 15 N.W.2d 257, 259, and citations; 5A C.J.S. Appeal and Error § 1745, page 1085; 5 Am.Jur.2d, Appeal and Error, section 805. See also Olson v. Truax, 250 Iowa 1040, 1043-1046, 97 N.W.2d 900, 903-904, and citations.

III. The third assigned error is in overruling plaintiff's motion for a mistrial. Plaintiff called out of order as a witness, Dr. Lulu, a surgeon at the Veterans Administration hospital in Des Moines, who described plaintiff's injuries and the treatment given him. He was said to be suffering from a painful affliction following an injury to his nerves, claimed to have been caused by his fall. On cross-examination the witness was asked whether the hospital file of the case he had with him disclosed that at or before plaintiff's appearance at the hospital for these operations he came there with complaints, based on alcoholism or nervous disorder. Plaintiff's counsel immediately moved for a mistrial on the ground that question was asked to prejudice the jury against his case.

Defendants' counsel insisted the question was asked in a good faith attempt to show plaintiff's nervous disorder was not caused by his fall down the steps. The court ruled the question might be proper, that if a lack of basis for it later developed, the jury would be admonished to disregard the question. The witness first answered 'yes' but later said his answer would be 'no.' The doctor then explained alcoholism could account for a nervous condition but not for an injury to plaintiff's nerves--the cause of such an injury would be traumatic.

The trial court evidently decided the jury should not consider the matter of alcoholism or nervous condition. One of the court's instructions told the jury reference was made during the trial to these matters but that in arriving at their verdict no consideration should be given such matters.

Some other evidence may be referred to. Dr. Lulu testified on direct examination plaintiff was not in the hospital for anything other than he described. Dr. Martin of Carroll who treated plaintiff many times following his injury testified on cross-examination without objection that he noticed evidence of drinking when plaintiff reported for treatment several times. Plaintiff was in the military service nearly 22 months in 1953-4 and served in Korea 16 months. He was shell shocked 'a little' in the service and received 10 per cent disability of his ears.

We are not persuaded it was an abuse of discretion to refuse to declare a mistrial. The trial court has considerable discretion in determining whether alleged misconduct, if there was such, was prejudicial. Certainly he is better able to appraise the situation than we are. We will not interfere with such a ruling unless it is reasonably clear such discretion has been abused. Castner v. Wright, 256 Iowa 638, 127 N.W.2d 583, 591, 128 N.W.2d 885, and citations; Mead v. Scott, supra, 256 Iowa ----, 130 N.W.2d 641, 644, and citations.

Further, instructing the jury to disregard the asking of a question claimed to be misconduct ordinarily leaves no ground for complaint except in extreme instances where it is manifest the prejudicial effect remained and influenced the verdict despite the instruction. See Castner v. Wright, supra, and citations.

Connelly v. Nolte, 237 Iowa 114, 130, 21 N.W.2d 311, 319, cites many precedents for the proposition that unless it appears probable a different result would have been reached but for claimed misconduct of counsel for the prevailing party we are not warranted in interfering with such a ruling. To like effect is Corkery v. Greenberg, 253 Iowa 846, 853-854, 114 N.W.2d 327, 331, and citations.

There was no evidence or claim by defendants that plaintiff had been drinking the morning he fell nor was his character assailed on the ground he was an alcoholic.

IV. Plaintiff assigns as error the refusal of six requested jury instructions. He is not entitled to have this assignment considered because he did not object to the refusal as required by rule 196, Rules of Civil Procedure, 58 I.C.A. Nor did he object at any time in the trial court, even (belatedly) in his motion for new trial.

We have pointed out many times that rule 196 requires 'all objections to giving or failing to give any instruction must be made * * *,' specifying the grounds thereof, before the instructions are read to...