Klunenberg v. Rottinghaus

• Decision Date: 09 June 1964
• Docket Number: No. 51336,51336
• Citation: 256 Iowa 731,129 N.W.2d 68
• Parties: Gladys KLUNENBERG, Appellant, v. Gilbert ROTTINGHAUS, Appellee.
• Court: Iowa Supreme Court

Page 68

129 N.W.2d 68

256 Iowa 731

Gladys KLUNENBERG, Appellant, v. Gilbert ROTTINGHAUS, Appellee.

No. 51336.

Supreme Court of Iowa.

June 9, 1964.

Robert J. Pattee, Independence, for appellant.

Wendell A. Holmes for Reed & Holmes, Waterloo, for appellee.

SNELL, Justice.

Plaintiff was injured when she fell while helping her husband corral defendant's cattle. The cattle had strayed from defendant's field. Following a jury verdict for plaintiff the trial court sustained defendant's motion for judgment notwithstanding the verdict and plaintiff appeals.

In considering the propriety of the judgment notwithstanding the verdict the premise is the same as a directed verdict. We give the plaintiff's evidence the most favorable construction it will reasonably bear. Citations unnecessary. See Rule of Civil Procedure 344(f), par. 2, 58 I.C.A.

On December 18, 1960 defendant was the contract purchaser and operator of a 280-acre farm just south of Dunkerton in Black Hawk County.

The house, building lots and yard are on the east side of the road facing paved north and south highway #281.

Plaintiff and her husband had nothing to do with the farm land. They occupied as tenants the house, lots and garden area for which they paid $50.00 per month rent. As credit on the rent they received $1.00 per day for feeding and watering 28 feeder cattle owned by defendant and kept in the feed lot and barn. This work was ordinarily done by plaintiff's husband but plaintiff fed the cattle occasionally when her husband was away. The watering system was automatic.

As a part of the arrangement they were to call defendant if the cattle were out and were to call a veterinarian if the cattle were sick. They faced some difficulty in making calls as they had no telephone.

Across the highway to the west of defendant's farm is a cemetery. A driveway entrance to the cemetery is about 500 feet south of the driveway to the house occupied by plaintiff and her husband. The cemetery driveway is near the south boundary. The cemetery has a frontage of 250 feet along the highway.

From the south boundary northward along the highway for about 125 feet there is a fence. From the end of the fence northward there is a cement block retaining wall. The wall is about 5 feet high. The top is about flush or slightly above the level of the cemetery ground. At about midpoint steps with handrails provide pedestrian entrance from the highway over the wall to the cemetery.

Plaintiff had never visited the cemetery but was familiar with the fence and wall through use of the highway and living in proximity thereto.

Defendant, during the latter part of November, 1960 and after his corn had been harvested, turned the cattle previously confined in the feed lot into the cornfield to glean the field. Water was available. There is some dispute as to the duties of plaintiff and her husband thereafter, but in any event the duties were minimal.

Defendant testified that he inspected and repaired the field fences but they later proved to be neither substantial nor sufficient to restrain cattle.

At about 2 a.m. on December 18th a passing motorist aroused plaintiff's husband and said cattle were on the road. Plaintiff heard the conversation. Her husband went outside, took their car and attempted to drive the cattle back into the yard. Plaintiff testified:

'I could see through window husband was having trouble, that he needed someone to stand and block off driveway to keep them from going north on highway. Some of them were on highway when I saw them at that time. My husband came in. He wanted me to come out by the driveway and head them off. I had already assumed that I'd have to get up and help. I could see that one person couldn't get them in alone. He came in and asked me to come out and help, which I proceeded to do. By time I went out there the cows had congregated further south, on the highway and had entered this--I don't know at that time where they were; but he was driving them with the headlight, and honking the horn; and in the meantime I waited up by the drive for just a few minutes anyway; but the cows were not coming.' Some of the cattle had entered the cemetery.

Plaintiff heard her husband driving cattle out of the cemetery with his car. Plaintiff 'went down to view the situation.' She walked into the cemetery. She thought she 'would go chase' some cattle in the southeast corner of the cemetery. In the meantime her husband was having some success in driving cattle out of the cemetery. Plaintiff's 'first impulse' was to keep the cattle from going further south on the highway. She wanted to 'head them off from the highway.' She ran north along the inside of the cemetery fence to the place where the fence ended and the wall began. At that place she turned to her right and ran over the top of the wall into space. She landed in the shallow ditch at the foot of the wall and was injured.

To support her claim for recovery plaintiff alleged defendant's negligence, proximate cause, her own freedom from contributory negligence and damage. In support of her allegations she relies heavily on the 'rescue doctrine.'

I. The only charge of negligence made against defendant and submitted to the jury was failing to restrain his cattle from running at large.

Section 188.2, Code of Iowa, I.C.A. provides: 'All animals shall be restrained by the owners thereof from running at large.'

The jury was instructed that failure to comply with the statute would constitute prima facie evidence of negligence rebuttable by evidence of reasonable and ordinary care and under the circumstances.

The instructions were proper.

In Ritchie v. Schaefer, 254 Iowa 1107, 120 N.W.2d 444 we considered this problem and reviewed the authorities.

In the case before us defendant's cattle were at large. Defendant's evidence as to his care of and attention to his fences was received. The jury verdict for plaintiff necessarily included a finding of negligence incident to defendant's fences. Further review by us of the question of defendant's negligence is unnecessary.

II. In attempting to meet the burden of proof as to proximate cause and freedom from contributory negligence plaintiff's theory stretches the chain of causation beyond the breaking point.

Plaintiff had no duty to get up in the middle of the night to round up defendant's straying cattle. Defendant owed no duty to protect plaintiff from running off the top of the cemetery retaining wall. The wall was not a hazard created by defendant or in any way under his control, but it was one known to plaintiff.

Plaintiff was asked by her husband 'to come out by the driveway' and divert the cattle into the yard as he drove them down the road. When the cattle did not come she left her station. She went to the cemetery by its regular driveway 'to view the situation,' thought she 'would go chase' cattle in the corner, changed her mind and started back to the place her husband had asked her to stand. She did not use either cemetery entrance. She ran along the fence to its end and then turned to her right and went over the wall. She either forgot or paid no attention to where she was.

In considering the sufficiency of the evidence to generate a jury question certain basic rules relied on by plaintiff must be kept in mind.

Plaintiff's fall from the cemetery wall was not a foreseeable result of defendant's failure to detect and replace decayed fence posts across the road and some distance away, but foreseeability is not necessary.

To be proximate negligence need not be the sole cause of an injury. Concurrent negligence may be a proximate cause. These rules are so well settled as to need no citation of authority. For the customary instructions on this subject see Iowa Uniform Jury Instructions #2.6, 2.8 and 2.8a.

An intervening agency for which a defendant is not responsible does not necessarily relieve him from liability for his negligent act. If the original wrong concurs with the intervening cause and both act proximately both may be proximate causes.

Where a subsequent act is relied upon as an independent intervening cause it will not have that effect if reasonably foreseeable. Webber v. E. K. Larimer Hardware Company, 234 Iowa 1381, 1387, 15 N.W.2d 286.

It is not necessary that the consequences of a defendant's negligence should have been foreseen. '* * * [I]t is sufficient if the injuries are the natural, though not necessary or inevitable result of the wrong.' Chenoweth v. Flynn, 251 Iowa 11, 16, 99 N.W.2d 310, 313.

When the negligence is too remote from the injury the chain of causation breaks. The breaking point is not easy to determine. In Chenoweth v. Flynn, supra, 251 Iowa loc. cit. 17-18, 99 N.W.2d at page 314, we said:

'It is the rule too well established to require the citation of authority, that the question of proximate cause is generally for the jury to determine, although the line of demarcation between what is sufficiently proximate and what is too remote is often a thin one. If upon looking back from the injury, the connection between the negligence and the injury appears unnatural, unreasonable, and improbable in the light of common experience, such negligence would be a remote rather than a proximate cause. If, however, by a fair consideration of the facts based upon common human experience and logic, there is nothing particularly unnatural or unreasonable in connecting the injury with the negligence, a jury question would be created.'

In Blessing v. Welding, 226 Iowa 1178, 1183, 286 N.W. 436, 439, we quoted Restatement of the Law of Torts as follows:

"The fact that an intervening act of a third person is negligent in itself or is done in a negligence manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if

"(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

"(b) a...