Johnston v. Johnson
| Decision Date | 05 April 1938 |
| Docket Number | 44168. |
| Citation | 279 N.W. 139,225 Iowa 77 |
| Parties | JOHNSTON v. JOHNSON.[a1] |
| Court | Iowa Supreme Court |
Appeal from District Court, Kossuth County; F. C. Davidson, Judge.
Action at law for damages resulting from injuries sustained by plaintiff in being crushed between the rear end of defendant's truck and a brick pile in a brickyard at Fort Dodge, Iowa. Verdict and judgment in favor of plaintiff in the sum of $2,300. From this judgment, and from an adverse ruling on defendant's motions for a directed verdict and a new trial, defendant appeals.
Affirmed.
Shumway & Kelly, of Algona, and McCoid, McCoid & McCoid, of Mt. Pleasant, for appellant.
D. M Kelleher, of Fort Dodge, and Sullivan, McMahon & Linnan, of Algona, for appellee.
Plaintiff and defendant were both employed by the Johnson Clay Works located southeast of Fort Dodge, Iowa. On the afternoon of November 23, 1934, plaintiff and defendant were engaged in loading bricks from an L-shaped brick pile in the brickyard. A description of the brick pile is aided by the following sketch:
(Image Omitted)
This pile of brick extended in an east and west direction, was 30 feet long at the north, 5 or 6 feet wide at the west, and extended easterly at the same width for about 15 feet; from whence it extended southerly about 4 feet, from thence easterly 15 feet, and from thence northerly to the north line about 10 feet.
The defendant, accompanied by his wife, drove his truck to the southwest corner of the narrow part of the brick pile, with the truck standing in an easterly and westerly direction, the north side of the truck standing parallel with and about 1 foot out from the south wall of the narrow part of the brick pile; the rear end of the truck was stopped about 15 feet west of the L end of the brick pile. The cab of the truck had a window in the rear and was also equipped with a rear-vision mirror. The brakes and other mechanism of the truck were in good condition.
Plaintiff was the foreman, and he and defendant started loading bricks from the southwest corner of the narrow end of the pile. In loading the bricks, the plaintiff set the bricks on the back end of the truck and defendant picked them up from there and piled them in the front end. While so doing, defendant's wife was on the driver's seat in the cab.
Plaintiff's testimony tends to show that, after having loaded about 500 large bricks, weighing about 2,500 pounds from the southwest corner of the pile, plaintiff directed the defendant to back his truck up a couple of feet for the purpose of loading more quickly; that the defendant, pursuant to such request, told his wife, who was in the cab of the truck, to back it up a couple of feet. Plaintiff's testimony also tends to show that at that time the rear end of the truck was about 15 feet from the west end of the L part of the brick pile.
The testimony also tends to show that the defendant's wife, in compliance with the direction from defendant to back up a couple of feet, moved the truck backward about 2 or 3 feet and came almost to a stop. At the time the truck started to back, the evidence tends to show that plaintiff was standing 3 or 4 feet back of the truck, watching it. Plaintiff's evidence tends to show that at that time the plaintiff was about 12 feet from the L part of the brick pile. The evidence also tends to show that, instead of stopping the truck where directed, when it had almost come to a stop, it was suddenly and quickly backed up against the plaintiff at such a speed that he was unable to get away from the rear of the truck and was pushed back about 12 feet and crushed against the L part of the brick pile with such force that his body made a dent in that part of the brick pile extending easterly about 15 feet, pushing some of the brick off the east end of the pile.
The plaintiff in describing the movement of the truck, after he directed that it be backed up a couple of feet, said:
The floor of the brickyard was level and had a hard, smooth surface. The evidence tends to show that a truck standing upon that floor of the brickyard could easily have been stopped within 2 or 3 feet from where it stood; it also tends to show that it was customary to move trucks backward a couple of feet when men were engaged in loading brick onto a truck.
There is a conflict in the evidence in relation to some parts of the record hereinabove set out. In view of the rule that on a motion for a directed verdict the evidence must be viewed in its most favorable light for the plaintiff, we deem it unnecessary to set out in detail the defendant's evidence conflicting with that of the plaintiff.
As a result of being crushed against this pile of brick, plaintiff's left arm was broken, and he received other severe injuries to his body and legs.
At the close of the evidence and after the verdict, the defendant filed motions for a directed verdict and a new trial, chiefly upon the grounds that: (1) Plaintiff failed to show his own freedom from contributory negligence; and (2) that he failed to show any negligence on the part of defendant. The motions were overruled, and defendant appeals.
Appellant contends that the court erred in refusing to direct a verdict in his favor and in refusing to grant a new trial, because the evidence showed that plaintiff was guilty of contributory negligence as a matter of law.
The defendant was accompanied on the truck by his wife to the southwest corner of the brick pile where the defendant left the driver's seat to help load the bricks into the truck. There was a hard, smooth, level floor in the brickyard where the truck was standing when plaintiff and defendant started to load the bricks from the corner of the pile. Defendant's wife was in the driver's seat when the truck drove up to the brick pile and stopped. She then took charge of the mechanism of the truck and knew that plaintiff was in the rear of the truck helping load. After 500 large bricks had been loaded into the truck from the corner of the pile, plaintiff directed the defendant, who was then standing in the truck, to back the car up a couple of feet. Plaintiff then heard the defendant tell his wife to back up the truck a couple of feet. The jury could well find from the evidence that she knew that plaintiff at that time was standing at the rear of the truck. Plaintiff testified that he was 3 or 4 feet back of the truck and that there was a clear space of 15 feet back of the truck, extending to the L end of the brick pile. The undisputed testimony shows that the driver, pursuant to the direction given her by defendant, backed up the truck 2 or 3 feet and brought it almost to a stop, when suddenly and without any warning the truck shot back between 12 and 15 feet, in such a rapid manner that plaintiff was unable to extricate himself from the rear end of the truck before he was crushed against the L end of the brick pile. Was plaintiff guilty of contributory negligence under the circumstances?
The question of contributory negligence is generally for the jury. Laudner v. James, 221 Iowa 863, 266 N.W. 15; Zellmer v. Hines, 196 Iowa 428, 192 N.W. 281; O'Hara v. Chaplin, 211 Iowa 404, 233 N.W. 516; Zieman v. World Amusement Service Ass'n, 209 Iowa 1298, 228 N.W. 48; Wheeler v. Peterson, 213 Iowa 1239, 240 N.W. 683; Orr v. Hart, 219 Iowa 408, 258 N.W. 84; Huston v. Lindsay, Iowa, 276 N.W. 201.
The evidence in this case on the part of the plaintiff tends to show that there was a clear space of about 15 feet between the rear end of the truck and the L end of the brick pile, and about 11 or 12 feet between where he was standing and the L end of the brick pile. The testimony also tends to show that it was customary for trucks under similar circumstances to back up and stop within 2 or 3 feet, and that they could be stopped within that distance on the hard, smooth, level surface of the brickyard floor.
It also shows in this very case that, after the driver backed up 2 or 3 feet, the truck in question did practically come to a stop; and it is fair to assume from the evidence that, if the driver had not then carelessly stepped on the gas instead of the brake, the truck would have stopped at the place where directed. Therefore, if the truck could, by the exercise of ordinary care, have been stopped within a distance of 2 or 3 feet, or even 10 feet, plaintiff would have been in no danger whatever at the rear of the truck.
Under the evidence as shown by the record in this case, it was for the jury to say whether or not the plaintiff had a right to rely upon the presumption that the driver of the truck would exercise due care in backing it up as requested. From the evidence in this case the jury would have been warranted in finding that the driver knew of plaintiff's position at the rear of the truck, and she was therefore required to exercise due care for his safety. Huston v. Lindsay, Iowa, 276 N.W. 201.
As the jury would be warranted in finding from the evidence that the truck could, by the exercise of reasonable care, have been stopped within 3 or 4 feet, and that in such event there would still have been 10 or 11 feet of clear space between the plaintiff and the L end of the brick pile, it cannot be said as a...
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Johnston v. Johnson
...225 Iowa 77279 N.W. 139JOHNSTONv.JOHNSON.a1No. 44168.Supreme Court of Iowa.April 5, Appeal from District Court, Kossuth County; F. C. Davidson, Judge. Action at law for damages resulting from injuries sustained by plaintiff in being crushed between the rear end of defendant's truck and a br......