Gowing v. Henry Field Co.
| Decision Date | 20 September 1938 |
| Docket Number | 44323. |
| Citation | 281 N.W. 281,225 Iowa 729 |
| Parties | GOWING v. HENRY FIELD CO. |
| Court | Iowa Supreme Court |
Appeal from District Court, Page County; Grover W. Brown, Judge.
Plaintiff while engaged in installing steam pipes in the gutters and down spouting of defendant's building, in attempting to descend from the flat roof of a two-story arcade adjacent to the main building by means of a fire escape lost his balance and fell, sustaining injuries and brought this action to recover damages. Defendant's motions for a directed verdict made at the close of plaintiff's evidence in chief and also at the close of all the testimony were overruled and the case was submitted to a jury which resulted in a verdict for the plaintiff. Motion for new trial and objections and exceptions to instructions were made and likewise overruled and defendant has appealed.
Reversed and remanded with instructions.
Kimball, Peterson, Smith & Peterson, of Council Bluffs Keenan, Clovis & Sar, of Shenandoah, and Miller, Miller & Miller, of Des Moines, for appellant.
Ferguson & Ferguson, of Shenandoah, for appellee.
It is conceded by the parties to this cause of action that the plaintiff was an independent contractor and the case was submitted to the jury on this theory. This being true, it is not necessary to spend any time in a discussion of this question. Plaintiff was a master plumber and had been such for 18 or 20 years. He was engaged in business for himself; he had his own shop, tools and appliances. The defendant has for many years been engaged in the seed and nursery business in Shenandoah, Iowa. The plaintiff had for a number of years done work for the defendant and, on October 10, 1934, an agent of the defendant called plaintiff over the telephone engaging plaintiff to come to the defendant's place of business and install steam pipes in the gutters and down spouting on one of the buildings of the defendant company. The plaintiff was told that the defendant company had been experiencing difficulty in the winter months with ice forming in the gutters and it wanted a steam pipe attached to one of the radiators in the main building and extended outside into the gutters and spouting so that ice would not form and stop or clog up the gutters. This was the result which defendant wished to have accomplished. The method and manner of doing the work was up to the contractor. Nothing was said about the defendant furnishing any of the tools or appliances necessary to install the piping. Plaintiff was told to see Burl Snodgrass who would show him where the pipe was to be installed. Plaintiff brought with him his own tools and his regular helper and the company furnished two additional helpers, one of them being Burl Snodgrass. The main building was four stories in height. Adjacent to and on the south side of the main building was a two-story arcade erected over a driveway; this arcade was about 25 feet in width and had a flat roof around the outer edge of which was a balustrade 10 or 12 inches in width and extending up above the flat roof about 14 or 16 inches. South of the arcade was a one-story porch with a flat roof. Extending from the outer edge of the porch to within about 16 inches of the top of the outer wall of the arcade was an iron fire escape built as the ordinary fire escape except that there was no railing on either side of the same, simply the ladder or stairway portion of the ordinary fire escape. The treads or steps were 8 inches wide constructed of five one-half inch square steel bars set 2 inches apart with the edge or angle up. These bars were securely riveted into steel plates at each end and these plates were fastened by 3/8 or 1/2 inch bolts to the risers or steel uprights of the ladder or stair. The width of the porch roof is not given nor the degree of incline, but there is in evidence a photograph which indicates the fire escape ladder was set at a rather steep incline. The gutters to be fitted with steam piping were those around the arcade roof. The plaintiff and his helper came to work on October 11, 1934. They saw Snodgrass and together the workmen proceeded to the third floor of the main building. This building is equipped with an elevator and there is also an inside stairway. They spent the forenoon inside making the connections with the radiation of the heating plant and preparing the means of extending the pipe out through the wall of the main building onto the roof of the arcade. The steam piping to be used was placed out on the roof of the arcade. In the afternoon they came back to work going through the main building by means of the elevator or inside stairway; from thence they went out through a window which had been made into a door onto the roof of the arcade. There was also a door in the south side of the second story of the arcade opening out onto the porch roof. It was discovered that the steam piping was bent and plaintiff said, " We will take them down onto the cement driveway and straighten them." The steam piping was in sections about 20 feet long and Snodgrass said, " We will use the fire escape and avoid taking the long piping down through the main building." This was acquiesced in by plaintiff. They slid the piping down along the side of the fire escape to the porch roof and from thence to the ground, the men descending on the fire escape to the roof of the porch and from there by means of a ladder to the ground. In going down this fire escape, plaintiff stepped over the balustrade onto the first tread or step of the fire escape, then turned around facing the ladder using his hands to hold on, and he and his three helpers descended to the ground, straightened the pipes and took them back in the same manner to the roof of the arcade where they were installed in the gutter. Thus, the four men went down and up this fire escape experiencing no difficulty and although they were facing the fire escape none of them noticed anything wrong with any of the treads or bars in the treads of the fire escape ladder. After the pipes were installed in the gutter, it was necessary to go down onto the porch roof to make a connection in the down spout. Plaintiff, without any direction or instruction from anyone, took two pipe wrenches in his left hand and a 5-foot piece of steam pipe in his right hand and undertook to again go down the fire escape. He stepped up with his left foot from the roof of the arcade over the 16-inch balustrade down about the same distance to the first step or tread of the ladder and as he attempted to bring his right foot over the wall he lost his balance and fell to the porch roof below. In describing the accident, plaintiff said, " I came down to the fire wall and stepped over, first with my left foot over this fire wall (or balustrade) * * * when I put that one foot over I put my pipe wrenches, the hand with the wrenches in it, against the wall and started to get over with the other foot." He never got his right foot clear over. He was then asked what happened. He said, The witness was later recalled and was asked to describe what sensation he had, if any, with his foot and, over objection of opposing counsel that the testimony was incompetent and an attempt to have the witness vary or change his testimony, said, " I came up with my right foot. I felt something move, or a little depression. * * * Seemed to go down. As I fell I could feel my heel slip, that is all, just a little slip .
Q. You refer to a depression. What do you mean by that? A. I don't know how to explain it.
Q. You say there was a depression? A. Well, just my heel seemed to go down as near as I can tell .
Q. Down in what? A. In the top tread or step." (Italics supplied.)
This constitutes the entire testimony bearing on the question as to how the accident happened. The other three men were on the roof at the time but were not looking and did not see what took place until they saw the plaintiff in the act of falling.
The gist of plaintiff's claim for damages is found in the allegations of his petition which charges negligence on the part of the defendant in the following manner:
This was the only ground of negligence submitted to the jury. In answer to the charge of negligence, the defendant alleged the plaintiff was an independent contractor and the defendant did not owe him the duty of furnishing him a safe place to work that plaintiff failed to exercise reasonable care in attempting to make use of the fire escape; that if same were in any way defective such defect was readily apparent in the exercise of ordinary care and, therefore, the plaintiff assumed any risk incident thereto and if the defect was not readily apparent the same was not known to the defendant. On this appeal, it is the contention of defendant that plaintiff failed to make out a case for the jury, and that its motion to direct a verdict should have been sustained and that in overruling said motion made at the close of plaintiff's evidence and at the close of all the evidence the trial court committed an error. More specifically it is claimed that (a) there was no competent testimony of actual knowledge of the claimed defect or...
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