Laudner v. James

• Decision Date: 17 March 1936
• Docket Number: 43243.
• Citation: 266 N.W. 15,221 Iowa 863
• Parties: LAUDNER v. JAMES.
• Court: Iowa Supreme Court

266 N.W. 15

221 Iowa 863

LAUDNER v. JAMES.

No. 43243.

Supreme Court of Iowa.

March 17, 1936

Appeal from District Court, Franklin County; H. E. Fry, Judge.

Plaintiff administratrix, commenced this suit against the defendant alleging that her decedent's death was caused by the negligence of the defendant in the operation of motortruck by his employee. Defendant by way of answer denied all liability. Case was submitted to the jury, which returned a verdict in favor of the plaintiff. Defendant appeals. Opinion states the facts.

Affirmed.

Senneff, Bliss & Senneff, of Mason City, for appellant.

Willoughby, Strack & Sieverding, of Grundy Center, and Mallory & Leming, of Hampton, for appellee.

MITCHELL, Justice.

E. W. James, a truck operator, contracted to deliver a load of coal on the 26th day of December, 1934, to the farm home of Amos Laudner, located a few miles from the town of Sheffield. The weather was very cold. The house in which Laudner lived had a main part, which extended east and west, and on the south side there was a lean-to or kitchen, with an outer door on the east side. The cellarway, into which the coal was to be shoveled, was on the west side of the main part of the house. The truck was backed up to the cellarway opening, but because of the ice and snow the truck did not straddle the opening but the left wheel or north-side wheel was backed onto the south side of the casing of the cellarway, leaving the outside dual wheel hanging over the opening. When Sliger, the driver, brought the truck to a stop in that position, he left it in reverse gear. Laudner assisted in unloading the coal, which was shoveled into the cellar-way. When they had finished, it was somewhere between 5:30 and 6 in the evening. Both Sliger and Laudner got out of the rear end of the truck at the same time. Sliger testified that Laudner went to the south side and when he last saw him was about two feet south and four feet west of the southwest corner of the truck. Sliger went around on the north side of the truck, to the cab, where he turned on the switch and adjusted the gas, and then he went around to the front and cranked the motor. After leaving the rear end of the truck, Sliger could not see Laudner due to the fact that his vision was cut off by the truck. No one else saw Laudner after that time. Because the truck was in reverse gear when the motor was cranked, it moved backwards. When it was stopped Laudner was found lying on the ground, to the rear of the truck, his feet about two feet from the house, his head resting against the cellar casing. He was carried into the house, but before the doctor arrived he had died. His widow was appointed administratrix of his estate and commenced this action against E. W. James as the owner of the truck, to recover damages. Evidence was offered by the plaintiff. Defendant then made a motion for a directed verdict, which motion was overruled. The defendant then rested without offering any testimony and the case was submitted to a jury, which returned a verdict in the amount of $5,000 in favor of the plaintiff. Defendant, being dissatisfied, has appealed to this court.

I.

The first error argued by the appellant is that there was no actionable negligence upon which the verdict could be based.

When Sliger backed the truck in beside the cellarway and within about four feet of the house, he left the truck in reverse gear. As a truck driver, he of course knew that with the starting of the motor, being in reverse gear, the truck would move backwards. While the appellant does not concede that cranking the motor while the truck was in reverse gear was a careless and negligent thing to do, he says, even granting that it was, that that does not make for liability, and the right of appellee to recover depends upon whether or not his employee was bound to anticipate that Laudner would leave what appellant designates as a place of safety and go to a place of danger.

It is the contention of the appellant that Laudner was in a place of safety. But this record shows without any dispute that the last and only person who saw Laudner before the accident was Sliger, the driver of the truck, and he placed Laudner at that time two feet south and four feet west of the truck. But, it must be kept in mind that this was not at the time that the truck was being cranked. Laudner is placed in that position at the time that he and Sliger left the rear end of the truck. From the moment that Sliger stepped across the cellarway he had no view or knowledge of where Laudner was. How long it was between that time and when the truck was started does not appear in the record; but there was a space of time during which Sliger was walking from the rear end of the truck to the cab, turning on the switch, adjusting the gasoline, then going to the front of the truck to crank the motor. No one says that Laudner was in that place of safety, to wit, two feet south and four feet west of the truck, at the time that the motor was cranked. The physical facts proved that he was not there because he was caught between the house and the truck, and the record shows that the truck moved backwards the instant it was cranked.

The appellant argues with a great deal of force that the case of Nelson v. Mitten, 218 Iowa 914, 255 N.W. 662, is directly in point with the case at bar, and that unless we reverse this case we must overrule the Nelson Case. The writer of this opinion is guilty of writing the Nelson opinion, and cannot agree with able counsel who represent the appellant that it is necessary to overrule that opinion. In the Nelson Case the evidence shows, and in the opinion it is set out, that at the time the truck was started Nelson was in a place of safety. He testified to that himself. It was after the truck started that Nelson saw fit to leave that place of safety and run behind the truck in a diagonal manner. Had he remained where he was before the truck was started, he would not have been injured. Whereas, in the case at bar, there is no evidence to show that Laudner at the time the truck was being cranked was in a place of safety. In truth and in fact, the physical facts show that he was behind the truck at that very moment; otherwise he would not have been injured.

Laudner had assisted in unloading the coal. This was his home and he had a right to be there. He may have been picking up coal that had dropped behind the truck or he may have been closing the cellar door.

Sliger knew, or as a reasonably prudent man should have known, that cranking the truck would cause it to start, and, being in reverse gear, to move backwards under its own power. He knew that the decedent was at the rear of the truck. True, not behind the truck, but in the vicinity of it. Laudner had a right to assume that Sliger would act as a reasonably prudent and careful person. The only excuse offered for this tragedy is that Sliger forgot he had left the truck in reverse gear. He had no right to start the truck in motion without a driver and move it in a direction not expected or even remotely dreamed of. Certainly, it was a question for the jury to say, under the circumstances set out in this case, whether the employee of the appellant acted as a reasonably prudent man would have acted under the conditions that confronted him.

II.

It is next claimed that there is no competent evidence that the decedent was injured by being crushed by the truck.

With this we cannot agree. The coroner testified that he examined the body three or four hours after the accident; that he found marks on the back of the decedent where the rear of the truck box would strike him if he had been standing with his back to the truck at the time of the accident; that in his judgment Laudner died of internal hemorrhages, probably caused by the crushing of the kidneys or liver, the vital parts that would have been injured if the decedent had been caught between the truck and the house. In addition to this there is the testimony of the witnesses who were in the house at the time the accident occurred and who heard Laudner cry out and felt the jar at the time the truck moved backwards, and add to this the fact that Laudner's body was found lying on the ground between the house and...