Larsen v. Independent School Dist. of Kane Tp., Council Bluffs
| Decision Date | 06 April 1937 |
| Docket Number | 43821. |
| Citation | 272 N.W. 632,223 Iowa 691 |
| Parties | LARSEN v. INDEPENDENT SCHOOL DIST. OF KANE TP., COUNCIL BLUFFS. |
| Court | Iowa Supreme Court |
Appeal from District Court, Pottawattamie County; Ernest M. Miller Judge.
Plaintiff as administratrix of the estate of Arthur Grant Larsen brought suit to recover for accidental death of her husband in a school building of the defendant, an independent school district. Decedent came to his death by reason of a fall in the school building. Case tried to a jury, and, on motion of defendant, jury was instructed to return a verdict for defendant. Judgment entered on verdict. Plaintiff appeals.
Affirmed.
Robertson & Robertson, of Council Bluffs, for appellant.
Mitchell & Johnson, of Council Bluffs, for appellee.
Plaintiff in this case is the administrator of the estate of Arthur Grant Larsen, deceased, who met with an accident on the 11th of November, 1935, which resulted in his death within a few days thereafter, and in the petition plaintiff claims judgment against the defendant in the sum of $30,000, for such death, the petition being in two counts.
The first count is based solely upon negligence, and the second count makes the same allegations as in the first count, except that it alleges defendant was maintaining a nuisance, and in count 2 cites and refers to section 12395 of the Code, as to what constitutes a nuisance.
The facts set forth in the petition are about these: That there was to be a celebration of Armistice Day and exercises were to be held in the various schools on November 11, 1935, and the deceased, who was a member of the American Legion Post of Council Bluffs, Iowa, had been selected by the defendant and the post at Council Bluffs to make an address to the school children at Washington Avenue school building. Prior to that time the school district had prepared a platform in the north end of the hall on the third floor in said school building, with three small removable steps at the side of the platform where Mr. Larsen was to stand while making his address. The platform was made of lumber, about twelve feet long east and west, and 4 or 5 feet wide north and south, and about 22 1/2 inches high from the floor. The platform extended back to a railing at the north end, which railing projected about 2 feet above the platform. Above this a curtain hung from the ceiling where it was fastened on rollers, but it was not fastened to the railing. Back of the railing and curtain there was an open space or stair well to the floor below.
The speaker was a man about 42 years of age, with an artificial leg, having lost one leg in the World War. As he mounted the platform, he stepped back, lost his balance and, as he clutched for the curtain, it tore away from its moorings, and Larsen plunged over the railing and fell to the floor below, sustaining injuries from which he died in a few days.
The petition alleged the deceased was an invitee of the program committee, was a married man with two children, was city auditor of Council Bluffs at the time, earning $195 per month. It is alleged further that the defendants, its officers, and employees were guilty of certain acts and conduct consisting of omissions and commissions of negligence, which negligence was the direct and proximate cause of the injuries to decedent, which resulted in his death.
These acts of negligence alleged were, first, that the hall was a dark place where the platform was constructed; that the curtain should not have been left loose and unfastened as it was; that the defendant should have had an iron or steel netting of permanent background for the platform; that when Arthur Grant Larsen lost his balance and fell backward there was nothing to protect him, to keep him from falling down the stair well; that Larsen had no notice of the dangerous condition, and, while this dangerous condition existed, he was invited to make such address. There were further allegations about the curtain not being fastened, or not of a permanent nature, creating a dangerous situation, and allegations, of course, as to the necessary medical treatment, expenses, and the death of Larsen on the 19th day of November, 1935, as a result of the accident.
Count 2 of the petition copies verbatim practically the first eight paragraphs of the first count, and then alleges that on the 11th day of November, 1935, the following statute was in force in the state of Iowa:
" Whatever is injurious to health, indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof."
So the first count is based upon ordinary negligence, and the second count is based solely upon maintaining a nuisance by the school district.
The answer of the defendant denied each and every allegation therein contained, except such as were specifically admitted. It admitted that it is a school corporation organized, created, and existing under and by virtue of the statutes of the state of Iowa, and that at the times referred to in plaintiff's petition it owned, maintained, and operated in Council Bluffs, Iowa, a building known as " Washington Avenue School" where the accident happened. The case was tried to a court and jury; and evidence was introduced and showed about the state of facts as set forth in plaintiff's petition. And further, that the platform was a temporary affair, and the steps were also temporary.
The evidence of J. A. True was that he was superintendent of schools of the defendant, and had been for six years; that he had his office in the Washington Avenue school building, and spent most of his time there; that he was familiar with the third floor of said building; that, during the time he was superintendent, they would hold exercises on said third floor of said school building; that it was the only place they had to hold an assembly of students; that whenever it was necessary to call the students together they had them in that upper hall; that they had to have chairs for meetings of long duration, but for this particular meeting it was thought the pupils would stand, as it was to be a short address. Miss Ivory was principal of this school, but, at the time of the trial, she was away attending the funeral of her sister. Mr. True testified that there were two stairways leading to the third floor of the school building, one at the north, and the other at the south, end; that on the 11th of November, 1935, a platform or stage was at the back part of the hall, near the banister; the platform being about 20 feet east and west, and 4 or 5 feet north and south; that there were two steps to the south of the platform, and the platform made the third step. That just back of the platform there was a banister, or railing, of solid wood, kind of Oak color, which went down to the floor in the hall and projected about 3 feet above the top of the platform; and above the railing was a curtain suspended from rollers fastened to the ceiling, but the curtain was not fastened at the bottom to the railing. Back of the curtain was the stair well down to the next floor. The witness stated he was not on the third floor when the accident happened; that he knew the meeting was to be held that day, having learned this from the principal of the building; but he did not recall any specific time that it was talked over, but he thought it was spoken of at an informal meeting of the board, but he did not recall any comment or discussion of the matter. Mr. True said the American Legion asked them to co-operate with them in observing Armistice Day, and the schools arranged a place for the meeting, and the Legion provided the speakers. Mr. True testified that the curtain that hung at the back of the platform shut out the light and it was necessary to have on the lights.
Fred B. Shaw testified that he was a member of the school board of defendant, and had been for about nine years. He testified that it was the custom for Mr. True to mention that exercises would be held on certain dates, just a mention of the fact, that they were to observe Armistice Day in the schools; that sometimes the whole school board was present, sometimes not; they would talk about it maybe: Mr. True was superintendent of the schools. He said he thought the principals went ahead and arranged for the program.
The custodian of the building also testified that he was on the third floor of the building when the accident happened, but did not see Larsen fall; that the banister just north of the platform is 22 inches above the top floor of the platform; that the bottom of the curtain hung close to the top of the banister; that he knew there were to be exercises. He said he heard a noise, and, when he got there, he saw Larsen lying on his back on the second floor.
There can be no question from the record of the case that Larsen came to his death substantially as claimed in the petition; by falling over the banister at the back of the stage. The burial bill, physicians and hospital bills, and nurse hire were admitted by the defendant to be $678. The amount that the plaintiff is entitled to recover, if any, on account of said bills was left for the court to say and determine as a matter of law.
At the close of plaintiff's testimony, the defendant filed a motion to direct a verdict on the following grounds: First that the evidence offered by plaintiff was insufficient as a matter of law to sustain a finding by the jury of negligence on the part of defendant as charged in her petition; second, that the evidence failed to show Larsen free from...
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