Hicks v. Goodman, 49117

• Decision Date: 17 September 1957
• Docket Number: No. 49117,49117
• Parties: John HICKS, Appellant, v. W. E. GOODMAN, Appellee.
• Court: Iowa Supreme Court

Page 6

85 N.W.2d 6

248 Iowa 1184

John HICKS, Appellant, v. W. E. GOODMAN, Appellee.

No. 49117.

Supreme Court of Iowa.

Sept. 17, 1957.

Steward & Crouch and George E. Flagg, Des Moines, for appellant.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee.

THOMPSON, Justice.

The accident and injury for which plaintiff claims compensable damages occurred about noon on July 14, 1954. Plaintiff was at the time engaged as an employe of a transfer company, and was operating a truck in making deliveries about the city of Des Moines. The defendant was a builder of houses for sale. At the time set out he was engaged in building a house at 1705 E. 31st Street in Des Moines. The plaintiff, with his truck, brought there ten or eleven cartons of parts comprising a Youngstown Kitchen, to be installed in the house under construction. It is described as consisting of cabinets and a sink.

The house was not completed. The defendant says it was about two-thirds finished. When the plaintiff arrived with his truck and its contents to be placed in the house, the defendant was on or near the premises. He directed the plaintiff to drive his truck to the south side or rear of the house, where there was a stoop which provided entrance to the rear door. Inside this door the opening into the kitchen was immediately to the left. An opening into another room was at the right, and directly in front of the outer door and slightly more than three feet due north of it was an open stair well in which steps had not yet been installed.

Most of the cartons which the plaintiff was to deliver were small; but there was one large one, evidently containing the sink. When it was reached in the unloading process the defendant volunteered to help in getting it into the kitchen. The two men thereupon started to carry the carton through the outer door; but when they attempted to make the turn to the left through the opening into the kitchen, they found some difficulty. The plaintiff was at the front of the carton, and so was backing through the outer door and into the space inside it. They set the carton down in the doorway to adjust it so the left turn could be made, and at this point the plaintiff fell into the open stair well behind him and to the basement floor, sustaining the injuries for which he seeks compensation.

There is a dispute between the parties as to whether this was the first trip plaintiff had made through the outer door. He says it was; the defendant says plaintiff had previously carried two or three of the smaller cartons through the outer door and into the kitchen. There is no dispute that it was a bright sunlit day, although the plaintiff says it was darker inside the door; '* * * it wasn't real dark.'

I. The jury having returned a verdict for the defendant, upon this appeal the plaintiff assigns four errors, which we shall discuss on order. The first is predicated upon the trial court's refusal to give plaintiff's requested instruction No. 1, in giving the court's own Instruction No. 10 in lieu thereof, and thereby failing to give the jury any proper guide for determining the duty the defendant owed the plaintiff with respect to the condition of the premises. Requested Instruction No. 1 is this:

'You are instructed that the owner or occupant of a building or premises, who directly or impliedly invites others to enter therein or thereon, owes an active affirmative duty to such persons to use reasonable, ordinary care to keep such buildings or premises in a reasonably safe condition so as not to unreasonably or unnecessarily expose such persons to danger. As applied to this case, you are instructed that the Plaintiff was a business invitee upon the Defendant's premises and that the Defendant accordingly owed the Plaintiff the duty to exercise reasonable and ordinary care to keep his premises in a reasonably safe condition so as not to unreasonably or unnecessarily expose the Plaintiff to danger, and if you find from the evidence that the Defendant failed to exercise such care, he would be guilty of negligence and you should so find.'

This request was denied. The court gave its own Instruction No. 10, the material part of which we quote:

'You are instructed that the owner or occupant of a building or premises, who directly or impliedly invites others to enter therein or thereon, is bound to use reasonable care, under the circumstances, for the safety of others who are in their rightful places. As applied to this case, you are instructed that the plaintiff was a business invitee upon the defendant's premises and that the defendant accordingly owed the plaintiff the duty to exercise reasonable and ordinary care, under the circumstances of this case, for plaintiff's safety. * * *'

The substantial difference between the requested instruction and the one given by the court is that the latter omits the words 'use reasonable, ordinary care to keep such buildings or premises in a reasonably safe condition;' but includes the phrase 'under the circumstances of this case'. We think the words of the late Justice Weaver applicable here:

'It is probably true that no instruction or charge to a jury has ever been drawn with such perfect clearness and precision that an ingenious lawyer in the seclusion and quiet of his office with a dictionary at his elbow cannot extract therefrom some legal heresy of more or less startling character. The real test of the meaning and effect of an instruction for the purpose of review by an appellate court ought to be, and we think is the idea which the language objected to is fairly calculated to convey to the minds of jurors drawn from the ordinary walks of life; and the fact that upon a minute technical or hypercritical analysis some other interpretation can be placed thereon may be disregarded.' Law v. Bryant Asphaltic Paving Co., 175 Iowa 747, 753, 157 N.W. 175, 177, 7 A.L.R. 1189.

Lawyers are sometimes forced to attempt to 'distinguish and divide a hair twixt south and southwest side'; and this is especially true when they sit down to garner what they can for their client's benefit from the court's instructions, after an adverse jury verdict.

It is true, as plaintiff urges, it is reversible error to submit an issue to the jury without a proper guide with respect to it. We have so held in Jakeway v. Allen, 226 Iowa 13, 282 N.W. 374, Muirhead v. Challis, 213 Iowa 1108, 240 N.W. 912, and other cases. But the defect found in those cases is not present here. The requested instruction would have told the jury the plaintiff was a business invitee upon the defendant's premises, and that the defendant owed an affirmative duty to such persons to use reasonable, ordinary care to keep the building thereon in a reasonably safe condition so as not to unreasonably or unnecessarily expose such invitee to danger. The instruction given by the court, No. 10, likewise said to the jury that the plaintiff was a business invitee, and that the defendant owed him the duty to exercise reasonable and ordinary care, under the circumstances of the case, for plaintiff's safety.

Plaintiff's contention that the court left the jury without a guide to determine what duty it was placing on the defendant seems to give scant credit to the intelligence of the jurors. The 'circumstances of the case' were of course those surrounding the accident happening in the building under construction. Ordinary care for the plaintiff's safety would of encessity be concerned with the condition of the building and what the defendant did either to guard against a mishap to the plaintiff or to warn him of the danger thereof. The court's instruction No. 10 first referred to the ownership of the building and the invitation to the plaintiff to come therein; then said that the defendant owed the duty of exercising reasonable and ordinary care for plaintiff's safety. It does not seem possible that this would not direct the attention of the jury to the condition of the building. Following Justice Weaver's holding, as quoted above, that the proper test of an instruction is the idea which the language conveys to the minds of jurors drawn from the ordinary walks of life, Instruction No. 10 was a proper and sufficient statement of the law.

In fact, the trial court did, in itsInstruction No. 8, give the essence of the rule contended for by the plaintiff, with the important qualification 'under the circumstances.' Instruction No. 11 also directed the attention of the jury to the duty owed by the owner of premises to invitees coming thereon. We set out Instruction No. 8:

'You are instructed that the plaintiff had the duty of exercising reasonable and ordinary care for his own safety. However, you are further instructed that the plaintiff was an invitee upon the defendant's premises and as such he had a right to assume that the premises were in a reasonably safe condition, under the circumstances, until, in the exercise of ordinary care, he knew or should have known to the contrary.'

We also quote Instruction No. 11:

'The liability of an owner or occupant of premises is predicated upon his superior knowledge of the condition thereof and the dangers, if any, to which the invitee may be subjected and of which he may be unaware. In this connection you are instructed that the plaintiff was an invitee upon the defendant's premises and that the defendant owed the plaintiff a duty to use reasonable care to give warning of hidden dangers, if any, or of dangers if any, not readily observable, in the exercise of ordinary care, by the invitee upon the premises.'

With reference to Instruction No. 8, while this was concerned with defining the duty of the plaintiff to care for his own safety, the rule is clearly laid down that he had the right to assume that the premises were in a reasonably safe condition under the circumstances. It follows necessarily and without requiring any powers of deduction beyond those of the ordinary juror that the defendant owed the...