Low v. Ford Hopkins Co.

• Decision Date: 09 December 1941
• Docket Number: 45776
• Citation: 1 N.W.2d 95,231 Iowa 251
• Parties: LOW v. FORD HOPKINS CO.
• Court: Iowa Supreme Court

1 N.W.2d 95

231 Iowa 251

LOW v. FORD HOPKINS CO.

No. 45776

Supreme Court of Iowa

December 9, 1941

William M. Dallas, C. J. Lynch, and Donnelly Lynch, Anderson & Lynch, all of Cedar Rapids, for appellant.

Deacon Sargent & Spangler, A. H. Sargent, and Don Hines, all of Cedar Rapids, for appellee.

GARFIELD, Justice.

Decedent, 58 years old, the wife of plaintiff-administrator, was a resident of Mt. Vernon, Iowa. On December 8, 1938, she entered defendant's drugstore and tearoom in Cedar Rapids for the purpose, as plaintiff claims, of inspecting and purchasing certain merchandise. While in the store, she fell down a stairway leading to the basement, where merchandise was stored but not displayed for sale purposes, and where lavatories were situated. As a result of the fall, Mrs. Low received injuries from which she died in a few hours. Plaintiff claims the stairway was maintained in a negligent manner, so that its existence was not readily observable, and constituted a hazard to customers. There was a jury verdict for defendant from which plaintiff has appealed. The errors alleged pertain solely to the instructions given the jury.

I. Instruction 7 on contributory negligence deals with the no eyewitness rule. It is a substantial copy of the instruction quoted and approved in Azeltine v. Lutterman, 218 Iowa 675 682, 683, 254 N.W. 854. Appellant complains because the jury was permitted, under the instruction, to infer due care on decedent's part, only if they should find there was no obtainable direct evidence of the manner in which decedent conducted herself at the time, and just before, she was injured. Appellant says it was shown beyond dispute that there was no such obtainable direct evidence and that the jury should have been so instructed; that a nondisputed question should not be submitted to the jury.

In order for appellant to recover, he had the burden to prove decedent's freedom from contributory negligence. This was an issue under the pleadings. He was not entitled to the benefit of the no eyewitness rule unless it appeared there was no obtainable direct evidence of decedent's conduct at, and immediately prior to, the time of her fall. It is not sufficient that no one testified upon the trial to having seen Mrs. Low fall. This injury occurred in a busy store on one of the principal business corners in Cedar Rapids. A number of clerks and customers, and at least one traveling salesman, were in the store at the time. The Christmas holiday trade was on. It is true appellant called as a witness one Frommack, assistant manager of appellee's store at the time, though not in its employ at the time of trial, who testified that he made immediate inquiry of the clerks as to whether anyone had seen Mrs. Low fall, and found no one. Appellee, however, made no admission or concession that there was no obtainable direct evidence of decedent's conduct. It appears that the witness Mrs Bair, an acquaintance of decedent who also lived at Mt. Vernon, saw Mrs. Low standing within a few feet from the head of the stairs very shortly before the fall. It is true this witness says decedent was still standing there when the witness left the store.

We think it was not conclusively established that there was no obtainable direct evidence of decedent's conduct at the time in question and that the giving of Instruction 7 was not error in the respect claimed. In the absence of an admission by the adverse party, it is not often proper to tell the jury, in effect, that a party having the burden of proof on any question has established his claim as a matter of law.

Even though it might appear, however, beyond dispute that there was no obtainable direct evidence of Mrs. Low's conduct, we would hesitate to reverse because of Instruction 7. While it is doubtless true, as a general proposition, that nondisputed fact questions should not be submitted to the jury, it is not always reversible error to do so. Glass v. Hutchinson Ice Cream Co., 214 Iowa 825, 833, 243 N.W. 352; International S. F. Co. v. Beshey, 200 Iowa 165, 204 N.W. 265.

Rastede v. Chicago, St. P., M. & O. R. Co., 203 Iowa 430, 212 N.W. 751, cited by appellant, is distinguishable. There the accident occurred at a country railroad crossing and there were only three living persons who could have possibly witnessed decedent's conduct. The principal criticism of the instruction was that it left to the jury to find whether there was directcredible testimony of decedent's conduct.

II. Appellant next challenges Instruction 8 dealing with the proof necessary to establish by circumstantial evidence that the negligence complained of was the proximate cause of decedent's injuries and death. The jury was first told to "find whether the proven facts and circumstances are such as to justify a reasonable inference that such negligence of defendant, if any, was the proximate cause." That, where there is no direct evidence of causal connection, if the facts and circumstances are of such nature and so related to each other that the only conclusion that can fairly or reasonably be drawn therefrom is that such negligence of the defendant, if any,was the proximate cause, and that it is more probable that said injuries resulted from said negligence than from some other cause, the jury would be justified in finding that such negligence was the proximate cause, but if the facts and circumstances are equally consistent with some other cause than defendant's alleged negligence, then the jury would not be justified in so finding.

It is said that the italicized portion of this instruction places an undue burden on appellant; that it is sufficient if the proven circumstances render it reasonably probable that the cause of the injury was defendant's negligence, and more probable than any other conclusion based on such evidence. It is true we have so stated the rule, substantially as contended for by appellant, in Latham v. Des Moines Elec. Co., 229 Iowa 1199, 1207, 296 N.W. 372, 375; Whetstine v. Moravec, 228 Iowa 352, 362, 291 N.W. 425, and other cases. Nevertheless, the italicized portion of the above instruction is in accordance with repeated decisions of this court, from Asbach v. Chicago, B. & Q. R. Co., 74 Iowa 248, 37 N.W. 182, down to In re Brooks' Estate, 229 Iowa 485, 294 N.W. 735. It must be admitted there is some lack of uniformity in our decisions on the degree of proof necessary in a civil case where the evidence is wholly circumstantial. We think, considering the instruction as a whole, it did not constitute reversible error.

Appellant further complains that the jury should have been told that where a cause is shown which might produce an accident, and it is shown that an accident of that particular character did occur, it is a warrantable inference in the absence of showing another cause, that the one known was the operative agency in bringing about the result. Appellant cites, in support of the rule contended for, Woodard v. Chicago, R. I & P. R. Co., 193 Iowa 516, 522, 185 N.W. 978; Hall v. Chicago, R. I. & P. R. Co., 199 Iowa 607, 621, 199 N.W. 491, and George v. Iowa & S.W. R. Co., 183 Iowa 994, 997, 168 N.W. 322. Assuming, without deciding, that...