Martin v. Brown, 6238

• Decision Date: 20 February 1936
• Docket Number: 6238
• Citation: 56 Idaho 379,54 P.2d 1157
• Parties: R. A. MARTIN, Appellant, v. CARL E. BROWN, Respondent
• Court: Idaho Supreme Court

54 P.2d 1157

56 Idaho 379

R. A. MARTIN, Appellant, v. CARL E. BROWN, Respondent

No. 6238

Supreme Court of Idaho

February 20, 1936

NEGLIGENCE-DUTY OF OWNER OR OCCUPANT OF PROPERTY TO INVITEE-BREACH OF DUTY-EVIDENCE-DOCTRINE OF RES IPSA LOQUITUR.

1. Owner of lumber yard owed customer duty to maintain premises in reasonably safe condition, and to exercise reasonable care to protect him from injury.

2. That lumber fell on lumber yard customer when he was attempting to remove plank from pile held not to justify application of res ipsa loquitur doctrine.

3. In passing on motion for nonsuit, court must assume all evidence introduced on behalf of plaintiff is true.

4. In action by customer against owner of lumber yard for injuries sustained when pile of lumber fell on customer while he was attempting to remove plank, evidence as to owner's negligence held insufficient for jury.

APPEAL from the District Court of the Seventh Judicial District, for Valley County. Hon. A. O. Sutton, Judge.

Action for damages for personal injuries. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

S. L Tipton and C. H. Edwards, for Appellant.

The plaintiff's evidence made a prima facie case and it was error on the part of the court to grant defendant's motion for a nonsuit and judgment of dismissal. (Peterson v. Universal Auto Ins. Co., 53 Idaho 11, at p. 18, 20 P.2d 1016, and cases cited; Colgrove v. Hayden Lake Irr Dist., 40 Idaho 489, 235 P. 434; Kroetch v. Empire Milling Co., 9 Idaho 277, 74 P. 868.)

The plaintiff in his complaint alleged general negligence and when the plaintiff had proved the accident and the circumstances surrounding the accident, he had made a prima facie case, which raised a presumption of negligence, and placed the burden of explaining the accident upon the defendant and the doctrine of res ipsa loquitur applied to plaintiff's case as proved. (Cookson v. Fitch, 116 Cal.App. 544, 3 P.2d 27; Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, at p. 819; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A. L. R. 641, and note.)

F. M. Kerby and Fred M. Taylor, for Respondent.

It is a general rule of law, and has been followed in this state, that in an action to recover damages for personal injury where contributory negligence is plead as a defense, the plaintiff cannot recover when it is proven by the evidence that the negligence of the plaintiff was the proximate cause of the injury. (Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Pilmer v. Boise Traction Co., 14 Idaho 327, 94 P. 432, 125 Am. St. 161, 15 L. R. A., N. S., 254.)

The doctrine of res ipsa loquitur has no application to the instant case, because where specified acts of negligence are pleaded the plaintiff will be required to prove the specific acts alleged and cannot rely on the presumption of negligence under the doctrine of res ipsa loquitur. (Eisenbeiss v. Payne, 42 Ariz. 262, 25 P.2d 162; Burke v. Dillingham, 84 Cal.App. 736, 258 P. 627.)

MORGAN, J. Givens, C. J., and Budge, Holden and Ailshie, JJ., concur.

OPINION

MORGAN, J.

Respondent is the owner of a sawmill and lumber yard at McCall, in Valley County, to which appellant went with his truck to buy four planks. The foreman of the mill accompanied him to the place in the yard where the planks were located and they commenced to load them on the truck. The foreman took a plank from the pile and started with it to the truck. Appellant attempted to remove a plank and when he took a step with it away from the pile some of the planks fell from the pile on him and inflicted the injuries for which he seeks to recover. At the close of plaintiff's evidence defendant moved for a nonsuit, which was granted, and the action was dismissed. This appeal is from the judgment of dismissal.

Appellant went upon the premises of respondent for the purpose of purchasing lumber kept there for sale. He was an invitee and respondent owed him the duty to maintain the premises in a reasonably safe condition, and to exercise reasonable care to protect him from injury. (Williamson v. Neitzel, 45 Idaho 39, 260 P. 689; Pincock v. McCoy, 48 Idaho 227, 281 P. 371.) If respondent is liable to appellant for injuries sustained by him it is because of a breach of that duty. If the evidence introduced by appellant failed to establish a breach of that duty by respondent, the nonsuit was proper and the judgment should be sustained.

No evidence was introduced tending to show negligence on respondent's part, unless such negligence may be inferred from the fact that lumber fell on appellant when he was attempting to remove a plank as shown by his testimony.

The Supreme Court of California, in Mautino v. Sutter Hospital Assn., 211 Cal. 556, 296 P. 76, quotes a correct statement of the law, applicable to this case, from 20 R. C. L., pp. 55-57, as follows:

"The authorities are entirely agreed upon the proposition that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed perils. In the language of a recent opinion: 'The law is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them.' . . . . The owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not to the person injured that a recovery is permitted. . . . There is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant." See, also, Touhy v. Owl Drug Co., (Cal. App.) 6 Cal.App.2d 64, 44 P.2d 405.

Appellant relies on the doctrine of res ipsa loquitur and insists negligence on the part of respondent is shown, or may be inferred, from the fact that the lumber fell on him. Of this doctrine it is said in Wilson v. St. Joe Boom Co., Ltd., 34 Idaho 253, 268, 200 P. 884, 888:

"We think that the doctrine of res ipsa loquitur, which literally means 'the transaction speaks for itself,' and is merely a way of saying that the circumstances attendant upon an accident are of themselves of such a character as to justify a jury in inferring negligence as the cause of the accident, is applicable where an injury arises...