Kaiser v. Hahn Bros.

• Citation: 126 Iowa 561,102 N.W. 504
• Parties: KAISER v. HAHN BROS.
• Decision Date: 11 February 1905
• Court: Iowa Supreme Court

126 Iowa 561

102 N.W. 504

KAISER

v.HAHN BROS.

Supreme Court of Iowa.

Feb. 11, 1905.

Appeal from District Court, Wapello County; Frank W. Eichelberger, Judge.

Action to recover damages for personal injuries caused, as alleged, by the negligence of defendants. Verdict and judgment for plaintiff. Defendants appeal. Reversed.Gilmore & Moon, for appellants.

Steck & Smith, for appellee.

McCLAIN, J.

It appears without conflict in the evidence that on November 30, 1901, at half past 2 o'clock in the afternoon, plaintiff, who was passing along the sidewalk in front of defendant's store in the city of Ottumwa, tripped or stumbled over two heavy planks or skids which had been used for unloading produce from a wagon into the front of the store, and, when the wagon was removed, had been shoved partway into the store, and left with their ends resting on the sidewalk. The jury specially found that the use of the planks by defendants was a temporary and reasonable use, and the negligence on which their verdict was predicated must have been that, after the necessity for the use of the planks had ceased, they had been negligently allowed to remain on the sidewalk for an unreasonable length of time. This length of time, according to the finding of the jury, was five minutes. It is urged that the evidence conclusively shows that the planks could not have been on the sidewalk for more than two minutes prior to the accident, after they were shoved back from the wagon, and that the finding of the jury that the planks had been negligently allowed to remain on the sidewalk for an unreasonable length of time was without support in the evidence, and was the result of passion and prejudice. But we would not be inclined to interfere with the conclusions of the jury on this matter.

Nor would we be inclined to hold that the evidence in the record conclusively shows contributory negligence. The testimony given by plaintiff, as a witness, that she was not looking for anything in her way, because the walk had always been clear before, indicates to our minds only that she was not anticipating any obstruction. And clearly it would not be contributory negligence to fail to anticipate such an obstruction on the sidewalk. Whatever her duty may have been as to using care to avoid any obstruction which might be on the walk, it was certainly not negligence to fail to anticipate beforehand something which she had no occasion to anticipate; that is, the particular obstruction against which she in fact stumbled. But it is true, on the other hand, that plaintiff could not go along the sidewalk utterly heedless and oblivious of any danger, even though not of a nature which she might have anticipated; and perhaps, if there were no explanation whatever of how it happened that plaintiff, in broad daylight, and when, as it appears, the sun was shining, ran against and stumbled over two planks, each 12 inches wide, 3 inches thick, and extending from the level of the floor of the store, 18 inches above the sidewalk, to within 4 or 5 feet of the curbing (the walk being 12 feet wide), so that the top of the planks was 5 or 6 inches above the sidewalk where the plaintiff ran...