Jordan v. Sinclair Refining Co.

• Decision Date: 04 May 1965
• Docket Number: No. 51616,51616
• Citation: 135 N.W.2d 120,257 Iowa 813
• Parties: Charles R. JORDAN, Plaintiff-Appellant, and Appellee on Cross-Appeal, v. SINCLAIR REFINING COMPANY, Defendant-Appellee, and Appellant on Cross-Appeal.
• Court: Iowa Supreme Court

Page 120

135 N.W.2d 120

257 Iowa 813

Charles R. JORDAN, Plaintiff-Appellant, and Appellee on Cross-Appeal, v. SINCLAIR REFINING COMPANY, Defendant-Appellee, and Appellant on Cross-Appeal.

No. 51616.

Supreme Court of Iowa.

May 4, 1965.

Duffield, Pinegar & Tapscott, Des Moines, for plaintiff-appellant and appellee on cross-appeal.

Duncan, Jones, Hughes, Riley & Davis, Des Moines, for defendant-appellee and appellant on cross-appeal.

THOMPSON, Justice:

This case comes to us complete with motion pictures, still pictures, claims of written and oral leases, hospital records, numerous receipts pertaining to the operation of a service station, expert medical testimony, and appeals by both parties from rulings and judgments of the trial court. Upon the trial, and after denial of the defendant's motion for a peremptory verdict, the jury returned its verdict for the plaintiff in the sum of $81,342.00. The defendant thereupon filed its motion for judgment notwithstanding verdict, which was denied; and its motion for new trial, which was granted. These results were satisfactory to neither party, and we have before us the plaintiff's appeal from the award of a new trial, and the defendant's cross-appeal from the denial of its motion for directed verdict and the following motion for judgment notwithstanding. The questions involved are difficult, and no less so because of the skill with which the able counsel for the respective parties have urged their claims.

The trial court was of the opinion that the case as made before it required a jury determination of the questions of the contributory negligence of the plaintiff, and of the negligence of the defendant. It is at this point the defendant thinks the court was in error. The court did, however, conclude that the verdict of the jury was so excessive in the light of the evidence of the plaintiff's injuries as to show passion and prejudice; and on that ground, and on what it thought the inherent power of the court to set aside a verdict which did not administer substantial justice, it granted a new trial. Here the plaintiff parts company with the court.

Plaintiff's petition alleges that on March 21, 1962, while he was employed by his father, Admiral (otherwise known in the record as Admairal) T. Jordan, who operated a service station in Des Moines under lease from the defendant, he was injured by being caught under an automobile upon which he was working, when a defective Joyce hydraulic lift owned by the defendant and leased to Admairal T. Jordan as part of the equipment of the station, gave way and permitted the car to settle upon him. Other pertinent facts will be stated in discussing the contentions of the respective parties.

Since it is evident that if the defendant is correct in its claim that it should have had a directed verdict, and that its motion for judgment notwithstanding should have been granted, the contentions of the plaintiff respecting error in the award of a new trial are immaterial, we shall first consider the cross-appeal. Substantially, the defendant relies upon two grounds: first that the evidence shows plaintiff was guilty of contributory negligence as a matter of law; or otherwise stated, that he failed to generate a jury question upon his freedom from such negligence; and second, that it owed the plaintiff no duty, so that there was no showing of negligence on its part.

I. We come first to the question of the plaintiff's alleged contributory negligence. It appears that Admairal T. Jordan had leased the service station from the defendant on October 23, 1961; whether by written or oral lease is the subject of a controversy which will be examined later. The plaintiff was employed by his father. He was an experienced service station worker, 36 years of age, six feet two inches tall and weighing at the time of the accident 230 pounds. Within a week or ten days after October 23, 1961, he observed the hydraulic lift, which was part of the equipment of the station leased to his father, was not operating properly. It tended to permit a car placed on it to settle slowly. The plaintiff testified that he called this to the attention of the defendant's employees, and they came out and watched the operation of the hoist. One Phillips, a Sinclair employee, said it would be all right to continue to use the hoist because he didn't think there would be any difference in the way it would act. Phillips said he would check with the Sinclair office and see who would repair it, whether it would be Sinclair or the plumber who was responsible for the repairs.

The hoist had not been repaired on March 21, 1962. On that day the plaintiff, who was at the time alone in the station, undertook a brake repair job. He raised the car 'around 30 inches, maybe three feet, or maybe a little less.' The hoist was equipped with a safety leg, a metal support which operated under a car when it was raised on the hoist and prevented it from falling if the hoist failed to hold. However, the work the plaintiff was doing could be done more conveniently if the automobile was not raised to the full height of the hoist, and at the height at which the plaintiff had raised it the safety device was too long to be used.

The plaintiff's work which was on the left rear wheel brake at the time, did not require him to be beneath the car; but he dropped a small spring which rolled under the car. He crawled or slid under the automobile to retrieve the spring, the hoist gave way and he was pinned under the car until his father came to the station and released him. This is the plaintiff's evidence.

It is the defendant's strong contention that this evidence shows the plaintiff was guilty of contributory negligence as a matter of law. It is urged that he had a safe way of operating; that he knew of the defect in the hoist; and that he chose a dangerous means by going under the car when by raising it a short distance higher he could have used the safety device and insured his own protection. The question is not free from doubt; but we conclude that it was for the jury to say whether freedom from contributory negligence sufficiently appeared.

The defendant stresses this quotation from 38 Am.Jur., Sec. 193, page 873: 'One having a choice between methods of doing an act which are equally available, who chooses the more dangerous of the methods, is ordinarily deemed negligent, in the absence of a showing of the existence of an emergency, sudden peril, or other circumstances justifying such choice. The fact that the less dangerous method takes longer and is inconvenient and attended with difficulties furnishes no excuse for knowingly encountering the peril.' This the plaintiff counters by pointing out that following language of the same section, page 874, said: 'However, one is not always chargeable with negligence even though he does not adopt the safest and best course to avoid injury. The law does not require a choice unerring in the light of after events; it requires such a choice as, under all the known or obvious circumstances, a reasonably prudent man might make.'

We need cite no authorities for the proposition that the question of contributory negligence is ordinarily one for the jury. The cases vary so much in their facts that the great majority of them which have dealt with the point are not helpful. Nor would it be possible to analyze the many authorities cited by the contending parties on this question within the reasonable limits of this opinion. It will suffice to refer to one case relied upon by the defendant, to illustrate the difficulty of finding an exact factual authority. In Lewis v. Cratty, 231 Iowa 1355, 4 N.W.2d 259, we held a verdict should have been directed against the plaintiff. He was using a grain combine and was injured when caught in an unguarded power shaft. The operation of the shaft, and that it had no guard, was obvious and known to the plaintiff. It was clear that if he became entangled with the shaft he would be injured. In the case at bar, as plaintiff's case is made, the hoist had never before dropped or lowered suddenly. It had always been gradual. The plaintiff had at least a few inches of clearance between his body and the car when he went under it. He expected to be there only a short time; long enough, only, to retrieve the spring. He says it was only a matter of seconds, certainly no longer than a minute, before the car descended upon him. While a jury finding of failure to show freedom from contributory negligence would have substantial support in the evidence, we cannot say it so clearly appears as to make it a question of law.

II. The defendant urges that it owed no duty to repair the hoist, and so, there being no duty, there could be no negligence. Here arises a considerable contention as to whether the lease under which Admairal T. Jordan was operating the station was written or oral. The defendant cites many authorities which hold that a landlord owes no duty to repair demised premises; and that any agreement to repair after the original lease is made is without consideration. We think it unnecessary to discuss these, as the record before us appears. There was a substantial jury question as to the nature of the lease, and this was submitted by the court. The controversy at this point requires some further statement of facts for understanding.

The record shows a written lease, dated October 23, 1961, by the terms of which the defendant leased...