Holmes v. Gross, 49602

Citation93 N.W.2d 714,250 Iowa 238
Decision Date16 December 1958
Docket NumberNo. 49602,49602
PartiesC. I. HOLMES, Appellee, v. Ruth GROSS, also known as Ruth Maitis, doing business as Ruth's Cafe, Appellant.
CourtUnited States State Supreme Court of Iowa

Stilwill & Wilson, Sioux City, for appellant.

Crary & Crary and Wallace W. Huff, Sioux City, for appellee.

PETERSON, Justice.

Ruth Gross is in the cafe business in Kingsley, Plymouth County. She maintains a cafe known as 'Ruth's Cafe' on one of the main streets of the town. A new building was added to her business in 1954, erected immediately west of the old cafe, in which new building she maintains a dining room. The only connection between the two places of business was a folding door at about the center of the rooms. Customers can enter both cafe and dining room direct from the street.

Plaintiff was sales manager of a Sioux City lumbermen's supply company. On the evening of March 28, 1957, the retail lumbermen of that area had a dinner in the dining room, which he attended. This was his first visit to the cafe. There were approximately thirty persons present. The dinner was served at a table running lengthwise in the room. After dinner a movie reel was shown.

After the showing of the reel the lights were again turned on. Plaintiff then arose from his chair, as he was desirous of going to a men's rest room. There were no signs as to facilities on any doors or other places in the dining room. In the southeast corner of the room was a ladies' rest room, although on the evening in question no lettering had been put on the door. There was a very large air conditioning unit about two feet in front of this door, causing the door to be somewhat hidden. At the south end of the room and across the center was a coat rack for customers. In the southwest corner of the room was a planter five feet long. It was on a stand about three feet high and contained shrubs and plants. Immediately back of the planter was a screen, about ten feet in height. Back of the screen was a hallway with two doors. One door was an exit from the building. The other door opened toward the east from the hallway.

Thinking this door led into a men's rest room plaintiff opened the door and discovered it entered into a pitch-dark space. He assumed there was a floor even with the hallway floor, and reached around the door frame for an electric light switch. As a part of the same motion of his body he stepped over the threshold of the door. Instead of stepping on floor it developed that there was a stairway leading immediately away from the door. He did not find any electric light switch and pitched forward head first to the bottom of the stairway.

He was seriously injured. He was confined in the hospital for ten weeks and it was stipulated that his medical and hospital bills amounted to $2,049.75. The doctor testified, without any dispute in the evidence, that he had permanent injuries to the extent of 15%.

In the first count of the petition plaintiff alleged negligence of defendant, and absence of contributory negligence as to plaintiff. In the second count of the petition plaintiff alleged the maintenance of a nuisance by defendant. Count II was properly stricken by the trial court before the case was submitted to the jury. Defendant's answer contained five divisions. It was general in its provisions with the exception of an allegation as to assumption of risk on the part of plaintiff.

Defendant moved for directed verdict at the close of plaintiff's case and also after introduction of all evidence. Both motions were overruled. Upon submission to the jury a verdict was returned in favor of defendant.

Plaintiff filed motion for new trial on various grounds which we will consider hereafter. The motion was sustained. Defendant has appealed from the ruling of the trial court sustaining the motion for new trial.

We show below a sketch of the dining room in order to clearly illustrate the room, its appurtenances, the stairway and plaintiff's route to the stairway. (Dotted line)


I. Appellant's first assignment of error is failure of the trial court to sustain motions to direct verdict, filed on basis of no negligence on part of defendant, and presence of contributory negligence on part of plaintiff.

It is elementary that in connection with passing on a motion for directed verdict the evidence must be viewed in the light most favorable to plaintiff. Lathrop v. Knight, 230 Iowa 272, 297 N.W. 291; Crowell v. Demo, 231 Iowa 228, 1 N.W.2d 93; Stafford v. Gowing, 236 Iowa 171, 18 N.W.2d 156; Stupka v. Scheidel, 244 Iowa 442, 56 N.W.2d 874.

In negligence and contributory negligence cases it becomes imperative that each case is considered on the basis of the facts of that case. While we occasionally find similarities as precedents, the fact remains that in nearly all cases there are some differences which make consideration of the facts of each particular case a matter of importance.

In Stafford v. Gowing, supra [236 Iowa 171, 18 N.W.2d 159], we recognized that situation when we stated: 'The facts of each particular case of this kind are controlling on the question of negligence.'

Appellant has cited a number of cases pertaining to stairways, and to falling into elevator areaways. In each case cited there seems to be a somewhat different state of facts.

The question of whether or not it was correct to submit the case to the jury depends on whether or not the physical circumstances surrounding defendant's place of business are such that prudent and reasonable minds might differ as to the question of negligence. Downing v. Merchants' Nat. Bank, 192 Iowa 1250, 184 N.W. 722, 20 A.L.R. 1138; Odegard v. Gregerson, 234 Iowa 325, 12 N.W.2d 559; Lindquist v. Des Moines Union R. Co., 239 Iowa 356, 30 N.W.2d 120; 65 C.J.S. Negligence § 251.

In this modern day with so many automobiles traveling through the country and passengers stopping for meals at restaurants and cafes, and with the family of today going out often for meals instead of cooking at home, the presence of ladies' and men's rest rooms in a cafe is almost as essential as tables and chairs.

There was a men's rest room in the other building where defendant had a cafe, but it was a separate building. The door was closed between the two buildings and this situation does not avail defendant as to absence of negligence in connection with her rest room situation.

Referring to the planter and screen in the southwest corner of the dining room, plaintiff testified as follows: 'I went to the southwest corner of this room rather than the southeast corner because this planter in front of the alcove back there led me to believe it was hiding the entrance to the rest room. When I referred to the planter I meant the screen * * * The glass panel or screen does not go clear to the ceiling.'

On the evening in question there was no lettering on the stairway door. Since that time the word 'Stairway' has been printed on the door in large black letters.

In addition to the inherent danger involved in the physical situation defendant had been warned as to this dangerous stairway on two occasions. Repeated warnings as to a dangerous condition had a bearing on whether or not she was negligent in the maintenance of her place of business.

In November of 1954, Mrs. William Hoyt came into the dining room for a meal. As to the stairway door she testified:

'Q. Did you see a door located in the southwest corner of the dining room? A. After I passed behind this screen that there was.

'Q. Did you open that door? A. I did.

'Q. And what happened? Tell the jury what happened. A. As I opened the door expecting to step into the rest room * * * I fell forward. The door went inward. I fell. Yes, I fell forward. * * * There was no sign on the door at that time. I did not observe any signs in the dining room. * * * indicating where the rest rooms were located. Mrs. Gross was not there at the time I fell but I, at a later time, informed her.'

On March 13, 1956, which was about a year before plaintiff's injury, Mrs. Eva Royer came into the dining room to secure a cup of coffee. She testified: 'I went in the restaurant somewhere around one in the afternoon. One of my purposes was to go to the rest room. * * * As I proceeded behind the planter, I walked to the door and opened it and fell into the basement. * * * There was no sign or marking on the door that day. * * * After I fell down the stairs I saw Mrs. Gross and told her that I fell.' It is fortunate, but miraculous, that neither of these two ladies was seriously injured.

Another element was present in connection with defendant's negligence. Plaintiff reached around the door frame to turn on the electric light switch. At that moment he fell to the bottom of the steps. The record shows that Mr. Gross, husband of defendant, who was apparently working for or with defendant in the restaurant business, had unscrewed the bulb in the light at the bottom of the stairway. If Mr. Holmes had found the light switch it would not have been of any value to him, because with the bulb unscrewed the light would not have gone on. On the other hand, if Mr. Gross had left the bulb screwed in the light socket the accident would never have happened because the stairway would have been completely lighted as Mr. Holmes opened the door, instead of being pitch-dark as he testified.

There were sufficient elements of negligence involved in defendant's situation in her dining room that evening so that prudent and reasonable minds could differ as to conclusions to be drawn therefrom. The circumstances as to negligence were sufficient to justify submission to the jury. We can well say, as we did in Lindquist v. Des Moines Union R. Co., supra [239 Iowa 356, 30 N.W.2d 127]: 'Could a reasonable minded person find negligence from this record? * * * It is a fact question to be determined by the jury.'

65 C.J.S., supra, states: 'With respect to...

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