Flatley v. Garage

• Decision Date: 22 June 1923
• Docket Number: No. 35150.,35150.
• Citation: 194 N.W. 180,196 Iowa 82
• Parties: FLATLEY v. ACME GARAGE ET AL.
• Court: Iowa Supreme Court

196 Iowa 82

194 N.W. 180

FLATLEY

v.ACME GARAGE ET AL.

No. 35150.

Supreme Court of Iowa.

June 22, 1923.

Appeal from District Court, Polk County; Joseph E. Meyer, Judge.

Action to recover damages for personal injury. The jury returned a verdict in favor of plaintiff for $500. Defendants appeal. Facts appear in the opinion.

Reversed and remanded.Miller, Kelly, Shuttleworth & McManus, of Des Moines, for appellants.

C. S. Missildine, of Des Moines, for appellee.

ARTHUR, J.

Appellants, Ben Woolgar and William Flatley, were operating a garage known as the Acme Garage, located on Sixth street between East Walnut and East Locust streets in the city of Des Moines. The building in which the garage was located was owned by the Iowa Investment Company. The building was 66 feet wide and 150 feet long. Opening on the street was a main entrance where cars were driven in and out, 12 feet wide and 13 feet high. There was another small door in the front of the building entering the office, which was closed at the time in question. On either side of the main entrance there were guard rails. Said guard rails were installed by the owners of the building, the Iowa Investment Company, after appellants had occupied the building for some time, on the owner's initiative, and not at the request of the tenants. The guard rails were evidently for the purpose of protecting the door jambs. The guard rails were railroad irons 28 inches long and 4 inches wide. They were imbedded in the cement floor at the lower ends. At the tops the guard rails fitted into the door jambs and leaned against the walls of the building. The distances at the floor between the door jambs and the inner edges of the guard rails were 10 inches. Thus the guard rails formed hypothenuses of triangles. We insert below a photograph which will be helpful in understanding the physical situation involved in this case.

IMAGE

Appellee and her family were residents of Illinois. At the time in question she and her husband, Edward G. Flatley, and a daughter and little son were in Des Moines visiting her husband's brother, appellant, William Flatley, and his family. Appellee and her children had preceded her husband on the visit to Des Moines. On the evening in question appellee's husband arrived in Des Moines and she met him at the depot and they walked to the garage. The proprietors of the garage, Woolgar and William Flatley, were at the garage and also Mrs. William Flatley was in an automobile across the street from the garage. William Flatley and his wife, his brother, Edward Flatley, and appellee went in an automobile from the garage to the home of William Flatley. Later in the evening they all returned to the garage and parked their automobile along the curb north of the entrance of the garage where they all got out of the car and went into the garage. After visiting a few minutes with Woolgar and his wife, appellee and her sister and appellee's daughter went out of the garage onto the sidewalk to the south entrance of the garage and were waiting for William Flatley and Edward Flatley to join them, expecting to go to the grounds of the State Capitol to view a parade. The children of the Flatleys were playing on the sidewalk, among them the little son of appellee, whose age the record does not disclose. While the parties were standing on the sidewalk on the south side of the driveway, a car was driven into the entrance and William and Edward Flatley, who had come out of the garage just before the car entered, returned into the garage, and appellee's little boy ran into the entrance of the garage. Appellee started into the entrance to get the little boy. Appellee testified that she was standing near the south side of the entrance and turned to go into the entrance of the garage; that--

“I caught my foot under the iron, and it threw me down. Just above the ankle is where it hurt. I felt something strike it when I went to go in at the door; I felt that I had hit something and it threw me forward onto the floor. When I got up, I was sitting there holding my right limb. I had not seen the iron rail before, and I did not see it when I started into the garage. When I went into the garage, I was looking to see where the little boy had gone. I caught my foot under that iron that sticks out in the door. I think it was my left foot that I caught and walked into it with my right foot.”

In the accident the tibia bone of the right leg of appellee was broken.

On the trial appellants insisted that appellee's fall was not caused by catching her foot in the space between the guard rail and the jamb; that she had not touched the guard rail, but simply fell without tripping on any obstacle; and that the accident and consequent injury resulted from appellee's own negligence. These are issues which it will not be necessary to consider in determining the case.

At the close of all the evidence, appellants moved for a directed verdict on several grounds, among which in substance, were, that at the time of the accident appellee was at the garage without any solicitation on the part of appellants,...