Larkin v. Bierman, 56130
| Decision Date | 19 December 1973 |
| Docket Number | No. 56130,56130 |
| Citation | 213 N.W.2d 487 |
| Parties | Scott LARKIN, Appellant, v. Bob BIERMAN d/b/a Bierman's Repair Service and Bob 'Butch' Bierman, Jr., Appellees. |
| Court | Iowa Supreme Court |
David P. Miller, Davenport, for appellant.
Wayne A. Eckhardt of Eckhardt, Goedken & Hintermeister, Muscatine, for appellees.
Submitted to MOORE, C.J., and MASON, RAWLINGS, REES and McCORMICK, JJ.
Plaintiff Scott Larkin was injured when defendant Bob 'Butch' Bierman, Jr. dropped a hippopotamus cage on his feet. His negligence suit against Butch and his employer, defendant Bob Bierman, ended in a directed verdict for defendants. Trial court held plaintiff's evidence was insufficient for the jury on the issue of negligence. We reverse and remand.
I. Rules governing our review in this case are well settled. In considering the propriety of a directed verdict we examine the evidence in its light most favorable to the party against whom it was directed. The movant is considered to have admitted the truth of all evidence offered by his adversary and every favorable inference which may fairly and reasonably be deduced from it. Schneberger v. Glenn, 176 N.W.2d 782, 784 (Iowa 1970). The question of negligence, like the question of proximate cause, is generally for the jury and may be decided as a matter of law only in exceptional cases.
Negligence may be established by circumstantial evidence. Such evidence must be sufficient to make the theory of causation reasonably probable, not merely possible, and more probable than any other theory based on the evidence, but generally it is for the trier of fact to say whether circumstantial evidence meets this test.
The only evidence received at trial on the issue of negligence was plaintiff's testimony. It is recited here in its light most favorable to plaintiff. He is a professional animal trainer who in April 1970 needed a cage for a newly-acquired hippopotamus. Charles Towne, then director of the Muscatine Zoo, owned a suitable cage. It was located on the premises of Bierman's Repair Service. That business was owned by Bob Bierman, and Butch was his employee. Towne agreed with plaintiff that if plaintiff would pay Towne's bill with Bierman's for welding repairs he could have temporary use of the cage.
Pursuant to this agreement plaintiff drove his flatbed truck to the Bierman premises with Towne in the late afternoon of April 16, 1970. He parked the truck in the driveway. Towne talked to Butch after which Butch and Towne got on a tractor equipped with a hydraulic end loader. The loader operated jerkily as if low on hydraulic fluid. Butch drove the tractor to the rear of the premises. The cage was sitting there among weeds and junk cars. Its sides were five or six feet square, made with crossed horizontal and vertical rolled steel bars. It had a roof, floor and door, was mounted on casters, and weighed about 1500 pounds.
Butch called plaintiff to assist in pushing junk car frames out of the way. A long chain with hooks at each end was secured to and hung over the bucket on the loader, and the hooks were affixed to the cage. Towne got on the cage. Butch lifted it with the loader and carried it to the driveway near plaintiff's truck. He believed it would ride better on the truck if laid on its side because of the casters. Towne got off the cage and helped steady it on one side, and plaintiff steadied it on the other as it was lowered to the ground. When it reached the ground Butch directed the chain be unhooked from the cage. Towne unhooked the chain on both sides. Butch then simultaneously lifted the bucket off the cage and started backing. As he did so one hook of the chain cuaght the cage and flipped it over onto plaintiff's feet causing the injuries for which he sought damages.
Among plaintiff's 15...
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...their cause of action, the motion should be overruled. B & B Asphalt Co. v. T. S. McShane Co., supra, 242 N.W.2d at 284; Larkin v. Bierman, Iowa, 213 N.W.2d 487, 488. IV. Plaintiffs contend the trial court erred in sustaining defendant's motion for directed verdict on the ground there was i......
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