Crawford v. Emerson Const. Co.

• Citation: 222 Iowa 378,269 N.W. 334
• Decision Date: 20 October 1936
• Docket Number: No. 43595.,43595.
• Parties: CRAWFORD v. EMERSON CONST. CO. et al.
• Court: Iowa Supreme Court

222 Iowa 378

269 N.W. 334

CRAWFORD

v.EMERSON CONST. CO. et al.

No. 43595.

Supreme Court of Iowa.

Oct. 20, 1936.

Appeal from District Court, Union County; Homer A. Fuller, Judge.

This is a law action for the recovery of damages for personal injuries received when the wall of a building which was being wrecked by the defendant construction company fell through the roof of a one-story lean-to, injuring the plaintiff. The defense was a general denial. There was a trial to a jury, which returned a verdict of $5,500 in favor of the plaintiff. Upon submission of motion for a new trial, the court found the verdict to be excessive, which the court overruled, with the condition that the verdict be reduced to $3,500, and judgment was entered accordingly. Both parties have appealed, the plaintiff's appeal presenting only the question of the court's right to reduce the verdict.

Affirmed as to defendants-appellants' appeal. Reversed and remanded, with instructions, on plaintiff-appellee's appeal.Kimball, Peterson, Smith & Peterson, of Council Bluffs, and Healey & Reynolds, of Creston, for appellants.

Thos. E. Mullin and E. F. McEniry, both of Creston, for appellee.

HAMILTON, Justice.

The building that was being wrecked or torn down at the time this injury occurred was located at the southeast corner of Montgomery and Pine streets in the city of Creston, Iowa. Pine street runs north and south, and Montgomery street east and west. The building faced Pine street, the north side of the building extending out to the edge of the sidewalk. The building was owned by the Creston Finance & Realty Company, of which H. F. Harsh was president, and had been occupied by the Parrott Tire & Battery Company until there was a fire which occurred March 20, 1934. The main building was a two-story brick structure, and at the extreme east, and adjoining the east end of the brick structure, was a lean-to, one-story structure, occupied by the plaintiff at the time of the injury as a mechanic's shop. On April 17, 1934, the defendant construction company had been awarded the contract for tearing down the old building and erecting a new one in its place. The injury was caused by pushing a large section of the east wall over on to the roof of the shop, which plaintiff, with the actual knowledge of defendants, had entered only a few minutes before.

Three grounds of negligence are specified in the petition as follows:

“1. That with full knowledge of the fact that the plaintiff was in said adjacent building, the defendants continued to tear down said wall, and permitted the bricks to fall on the building occupied by plaintiff.

2. That the defendants, with full knowledge of the dangerous position of the plaintiff, failed to give notice or warning to the plaintiff of the danger of the falling wall.

3. That the defendants, negligently and carelessly, pushed or caused to be pushed a part of said wall to the east, well knowing that said wall would fall on the building occupied by the plaintiff.

That as a result of the falling of said wall, the plaintiff suffered great physical injuries, to wit:” (Specifying the injuries and damages and praying for judgment in the sum of $10,000 and costs.)

At the close of plaintiff's evidence, defendants moved for a directed verdict. The motion in substance alleged that the plaintiff had failed to establish any of the alleged grounds of negligence; that the evidence conclusively showed the plaintiff was a mere trespasser or licensee; that plaintiff went upon the premises and entered the building with full knowledge that the same was being torn down, and assumed all the risks and hazards in connection therewith; and that, as a matter of law, the plaintiff was guilty of negligence which directly contributed to his alleged injuries. In ruling upon the motion the court said: “Let the record show the motion as a whole is overruled. The notion the court has of this case, there is only one ground of negligence that could in any way be made the basis of recovery, and that would be the third ground of negligence set forth in the plaintiff's petition. The evidence affirmatively shows as to ground One and Two that the plaintiff had a full knowledge of the things that were being done by the defendants in the way of tearing down the building in controversy. * * * and he assumed whatever risk there was incident to the fact of going into the building as they were tearing it down in the way they then were tearing it down, and he would be guilty of contributory negligence by going into the building if his injuries were caused solely and only by reason of the ordinary incidents attending the tearing down of the building in controversy; he had a full knowledge of those facts and he was clearly guilty of contributory negligence if he received his injuries from that source, but as the record now stands it seems to the court that there was an act done affirmatively by the defendants in the pushing of the wall to the east which could not or might not be anticipated by the plaintiff at the time that he entered the building where he was when he was injured. It seems to the court that that ground of negligence is the only one that the court can submit to the jury in connection with this matter, and the motion will be sustained insofar as it affects grounds One and Two set forth in the petition, and will be overruled as to Ground Three.”

The trial of the case was resumed, and at the close of all the evidence the defendants renewed the motion made at the close of the plaintiff's testimony for a directed verdict, still insisting that the third ground of negligence failed to state a cause of action, and that the evidence failed to prove any negligence on the part of the defendants, but affirmatively showed that the plaintiff was guilty of contributory negligence in going into this building and in remaining there for that length of time; that the evidence disclosed he was in the building, knowing that it was a dangerous location and that the tearing down of the building was in progress. This motion was overruled by the trial court, the court making the statement in connection with his ruling: “* * * that there is a very grave question here whether the plaintiff isn't guilty of contributory negligence such as bars the right to recover under the law. The Court believes that he will let this case go to the jury and let the jury pass upon the whole matter under proper instructions.” The case was then submitted to the jury under carefully prepared instructions, concerning which there is no complaint in the record. The jury returned the verdict of $5,500 in favor of the plaintiff. The defendants filed a motion asking the court to set aside the verdict and grant a new trial, and in arrest of judgment, and for judgment notwithstanding the verdict, by the terms of which all the matters now urged in appellants' assignment of errors were properly presented to the trial court. This motion was overruled, the court dictating into the record quite an elaborate statement in support of his ruling, at the conclusion of which he made this statement: “There is another matter in connection with this case, the Court believes that this verdict is more than should stand. The Court has heard all this testimony, he observed the plaintiff himself, he has heard the testimony in regard to the extent of his injuries and all those things, and he feels that a verdict of $3500.00 would amply recompense the plaintiff for such injuries as he sustained in this case, and the verdict will be reduced to that amount, and with that condition the motion for a new trial will be overruled, and the defendants and the plaintiff are each given an exception. Prepare a judgment order accordingly.” A judgment order was prepared, which recites: “That the verdict rendered by the jury herein was excessive in the sum of $2000.00 and said verdict should be reduced to the sum of $3500.00 and interest thereon at five per cent per annum from September 20, 1935.” And judgment was entered accordingly.

Both parties have appealed to this court. The plaintiff's appeal is from the ruling of the court reducing the verdict and from the judgment rendered thereon in the sum of $3,500. The defendants will be designated as appellants. The record is quite voluminous, and it will not be possible to discuss at length the evidence in connection with each and every assignment of error. But we have carefully read the entire record and considered the legal propositions presented in the assignment of errors, which will be noticed in their order.

[1] It is first urged that the plaintiff was a mere licensee or trespasser upon the premises, and the defendants therefore owed him no duty save not to injure him intentionally, willfully, wantonly, or maliciously; and as a corollary to this first assignment it is asserted in assignment No. 3 that the plaintiff had failed to prove any intentional, willful, or malicious act on the part of the defendants. The trial court specifically found that the uncontradicted evidence showed that the plaintiff was in possession of the lean-to under an oral agreement with the owner, entered into after the date of the fire, by which he agreed to pay a certain sum of money per month, and that he could occupy the building until the same was needed by the owner. It is the claim of the appellants that while there is no dispute or no evidence contradicting this finding, appellants do contend that the plaintiff failed to establish by competent proof such oral lease. We have given careful attention to appellants' argument in this respect, and we are abidingly satisfied, after carefully considering all the evidence on this proposition, that there can be but one conclusion reached. The trial court was right in holding that the plaintiff was rightfully in possession of the shop or lean-to at the time he was injured, and that he was not a mere trespasser or licensee. This beingthe case, a large...