McClenahan v. Des Moines Transit Co.

Citation132 N.W.2d 471,257 Iowa 293
Decision Date12 January 1965
Docket NumberNo. 51582,51582
PartiesThomas McCLENAHAN, Appellee, v. DES MOINES TRANSIT COMPANY, Appellant.
CourtUnited States State Supreme Court of Iowa

Dickinson, Parker, Mannheimer & Raife, Des Moines, for appellant.

Duffield, Pinegar & Tapscott, Des Moines, for appellee.

LARSON, Justice.

While servicing an advertising sign on the back of one of defendant's buses, plaintiff was struck down and injured when the bus was suddenly moved by one of defendant's employees. In his action for damages the trial court submitted the issue of lookout, contributory negligence, and alleged injuries to the jury. There was a verdict and judgment of $15,000.00 in plaintiff's favor. In various ways defendant had asked the court to hold as a matter of law that there was no evidence of any actionable negligence against it, that plaintiff was guilty of contributory negligence, and that plaintiff had failed to prove any element of damage alleged. Thus we must now determine whether the trial court erred in overruling defendant's motions and in submitting these issues to the jury.

It appears from the record that on the morning of May 28, 1963, at about 9:30 o'clock, plaintiff, age 73, was pursuing his usual task in defendant's bus yards of checking and replacing advertising signs on the buses. As an independent contractor working for defendant by the hour, he was checking signs on the rear of buses when he came upon one needing replacement. He proceeded to change it and, while so doing, this bus was backed up 'with no warning motor sign or anything', striking him to the ground and pinning him under the motor extension back of the rear wheels. Plaintiff testified: 'They did not have a person directing the driver from the outside on this particular day. When I walked up to the back of this bus the motor was not running, * * *.' He said he was familiar with diesel motors and knew the sound of them. He had heard the clash of gears around the yard, but did not hear it on this particular time.

He vaguely remembers being pulled from under the bus and rushed to a hospital. He testified: 'I did not at anytime (prior to the accident) have any injury or damage to my ribs or chest' and 'I had never had any fractured vertebrae to my knowledge or pain in my back and I could walk perfectly' prior to May 28, 1963. He said: 'I am walking with a cane now but I did not walk with a cane prior to this accident.' He had had no difficulty performing his checking of some 75 buses a day, and said: 'To my knowledge I did not have any arthritic condition of the spine,' although sometimes in the morning he would have a little pain in his left foot, which would leave after he walked a little.

When taken to the hospital he was in a coma, and things that occurred there were vague to him. After a couple of weeks he was transferred to Younkers Memorial for about four more weeks. He was a bed patient and said he had 'terrific pain in my chest and back' and so informed the doctors. His chest pains continued, although now he can breath easier. Since his hospital release he is able to walk a little with a cane, but cannot lift or carry anything without experiencing excruciating pain. He has been unable to straighten up, and his weight dropped from 175 pounds to 134 pounds. He cannot drive a car and must now use a cab to bring groceries from the market six blocks away. He must also hire help to care for his lawn and hedge, and stated he has done no work since the accident.

I. It is the duty of the trial court to submit to the jury all issues presented by the pleadings upon which there is evidence tending to support them. Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 61 N.W.2d 696; Clark v. Umbarger, 247 Iowa 938, 75 N.W.2d 243. It is also true that, when considering defendant's motions to direct, the evidence must be viewed in the light most favorable to the plaintiff, and every inference reasonably permissible must be carried to the aid of the evidence. Holloway v. Bankers Life Co., 248 Iowa 517, 527, 81 N.W.2d 453, and citations; Strom v. Des Moines & Central Iowa Ry. Co., 248 Iowa 1052, 1056, 82 N.W.2d 781.

II. The first issue raised by this appeal is whether there was sufficient evidence of defendant's failure to keep a proper lookout for plaintiff when the bus was backed out of line for service. Under Iowa law the duty of a motorist to maintain a lookout is not statutory but is a commonlaw duty to exercise ordinary care under the circumstances. Miller v. Stender, 251 Iowa 123, 129, 98 N.W.2d 338; Law v. Hemmingsen, 249 Iowa 820, 833, 89 N.W.2d 386, 395. Appellant contends plaintiff's evidence shows no breach of duty owed him. We cannot agree.

Although plaintiff was on defendant's premises as an invitee, he was there for the mutual benefit of both parties, and the defendant owed him a duty not to injure him by a hidden unexpected or unknown danger. True, plaintiff was aware that buses were often moved around the yard, knew the sound of diesel motors, was familiar with the gas and fumes coming from the exhausts, the noise of the gears, and the increased speed of the motors before the bus was moved. He was not familiar with the sudden start of a 'dead' bus, and the jury could find this was such a start. Under those circumstances the law required ordinary care by the operator not to injure a person rightfully on the premises. Atherton v. Hoenig's Grocery, 249 Iowa 50, 54, 86 N.W.2d 252, and citations; Rebmann v. Heesch, 227 Iowa 566, 576, 288 N.W. 695; 38 Am.Jur., Negligence, § 96, p. 754. Thus, defendant had the duty to maintain a 'proper lookout' for plaintiff, whose presence was clearly authorized and whose presence should have been known to or anticipated by the bus driver at the time.

Generally speaking, 'proper lookout', when used in connection with the operation of a motor vehicle, means the duty of seeing that which is clearly visible or which in the exercise of ordinary care would be visible. Ritter v. Andrews Concrete Products & Supply Co., 250 Iowa 297, 300, 93 N.W.2d 787. This court has also given the term a somewhat broader meaning. In Becker v. City of Waterloo, 245 Iowa 666, 673, 63 N.W.2d 919, 923, we said: 'Proper lookout means being watchful of the movements of one's own vehicle as well as the other things seen or seeable, and involves the care, prudence, watchfulness and attention of an ordinarily, careful and prudent person under the circumstances.' In Devore v. Schaffer, 245 Iowa 1017, 1024, 65 N.W.2d 553, 557, 51 A.L.R.2d 1041, we pointed out with reference to the term 'lookout' that it depends on the context and may mean 'care to discover whether plaintiff was in a place of safety from possible injury by the contemplated movement of the truck and trailer.'

We think such was the duty of the operator of defendant's bus, and from the evidence before it the jury could find he failed to perform that duty. There was evidence that the operator knew or should have known plaintiff was working at the time in and out of these buses servicing the advertising carried on them, that he knew there was a blind spot behind the bus for some twelve feet where the driver could not see a person either through the rearview mirror or the rear window. He testified he had remained in the driver's seat some three or four minutes while the motor pumped up the air for the brakes. If this were true, an authorized person could approach the rear end of the bus and start working without being observed by the operator. Obviously, then, he would be in a position of great danger if the bus were suddenly moved backward. Plaintiff testified he had been working a yard or a yard-and-a-half back of the bus for a minute or two when the bus came back on him. While the operator stated he saw no one behind the bus when he arrived, this did not as a matter of law relieve him of the duty to look again for plaintiff, who might well be working behind the bus three or four minutes later. Under these circumstances the jury could find it was the operator's duty to make sure the plaintiff was not working behind this bus before it was backed. Evidence of defendant's negligence, therefore, was sufficient to sustain the verdict.

Defendant cites Williams v. Cohn, 201 Iowa 1121, 206 N.W. 823; Larson v. Loucks, 69 S.D. 60, 6 N.W.2d 436, and Lovel v. Squirt Bottling Co. of Waconia, 234 Minn. 333, 48 N.W.2d 525, which involved the striking down of a child unexpected in the vicinity of a motor vehicle delivering goods on request. They, of course, are not in point for, as we have said, plaintiff's presence here could reasonably be expected at that hour. In the case of Nelson v. Mitten, 218 Iowa 914, 255 N.W. 662, also cited by defendant, plaintiff suddenly changed his position from one of safety to one of danger without the driver's knowledge. Factually it also is not in point, for there plaintiff's negligent action could not be reasonably anticipated.

III. Under the repeated decisions of this court contributory negligence is peculiarly a question for the jury. In Auen v. Kluver, 250 Iowa 619, 622, 95 N.W.2d 273, 275, we said: 'Contributory negligence and proximate cause * * * are strictly issues of fact and are ordinarily for the jury except where, under the entire record, plaintiff's contributory negligence is so palpable that reasonable minds may fairly reach no other conclusion. Then and only then does the question become one of law for the court.' (Citations.)

This is not the rare and exceptional case where the lack of reasonable care is so manifest, flagrant, and palpable that reasonable minds may reach only one conclusion. Plaintiff testified that when he came up to this bus it was 'stone dead' and the motor was not running. He had worked around these diesel-operated buses for some 14 years, was familiar with the smell of fumes coming from the rear end when they were running, knew the sound of a shifting of gears, heard the racing of motors before the bus was put...

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