McGrean v. Bos Freight Lines
| Decision Date | 08 March 1949 |
| Docket Number | 47381. |
| Parties | McGREAN v. BOS FREIGHT LINES, Inc. |
| Court | Iowa Supreme Court |
Parrish, Guthrie, Colflesh & O'Brien, of Des Moines, for appellant.
C Glenn Garten and Steward & Crouch, all of Des Moines, for appellee.
Both parties say there is little dispute in the facts. The defendant assigns and argues four errors: 1. Failure to find as a matter of law that defendant was not guilty of any negligence which was the proximate cause of plaintiff's injury. 2. Failure to find as a matter of law that plaintiff was not shown free from contributory negligence. 3. Failure to instruct as to the effect, if it should be found plaintiff knew, or in the exercise of reasonable care should have known, of the alleged dangerous situation on defendant's premises. And 4. Claimed excessiveness of the $10,000 verdict.
Plaintiff was injured the forenoon of May 23, 1947, while delivering merchandise to defendant's warehouse. An ice pick which had been stuck in the wall fell or was knocked down, striking and causing total and permanent loss of sight of his right eye. His employer, Watson Bros. Transportation Company, and defendant are trucking companies, with a reciprocal arrangement for interchanging freight where necessary because of varying routes.
Plaintiff was delivering to defendant for further transportation a consignment of fifteen wheelbarrows without buckets, that is consisting merely of frames and wheels. His truck was backed up to the east side of the outside platform (called the 'outer dock') of plaintiff's warehouse. It was about seven feet in depth (east and west) and covered by a canopy. Double doors or one large overhead door opened from the back of this outer dock to the west into the inside dock or stall in which the wheelbarrows were to be placed.
There were no other outside openings in this inner dock and no artificial lights were burning at the time. (We of course set out the record in its aspect most favorable to plaintiff.) The inner dock was so filled with freight as to leave only a narrow aisle along its south wall extending back about twelve feet to its west wall just wide enough (about two feet) to permit the wheelbarrows to be wheeled in, one at a time, and stacked against the back or west wall, and extending thence eastward toward the front.
About midway from front to rear in this south wall was a plywood panel about the size of a door--possibly serving to close an old doorway into the room or compartment to the south. Into this panel an ice pick had been stuck approximately five feet up or a little higher from the floor. It had been there, to the knowledge of defendant's terminal manager, Larson, at least several months and had apparently been used to hold up an old union bulletin. The Record does not show who placed it there. Plaintiff testified that prior to this occasion he had made but one delivery to defendant and he did not then enter the freight house as he had a helper who carried the merchandise in.
On the occasion of his injury plaintiff says the sun was shining bright but because of the canopy over the outer dock, the truck backed up opposite the door to the inner dock and the lack of any aritificial lighting or any other outside opening except the door, it was so dark inside that it was difficult if not impossible to read the tags. Larson told him where to put the wheelbarrows. He wheeled them in one at a time. On the twelfth trip, as he stacked the twelfth wheelbarrow against the eleventh, the ice pick fell striking and penetrating his eye--'* * * when I pulled out the ice pick and then that is when the blood run down my face so I just stood there.'
I. We have sketched the facts hurriedly. The first inquiry is as to the sufficiency of the evidence to sustain a finding of defendant's negligence. The situation is unusual. No case involving comparable facts is cited by either party. The duty of the owner of premises to foresee probable harmful consequences is stated as well as anywhere in Kapphahn v. Martin Hotel Company, 230 Iowa 739, 746, 298 N.W. 901, 905, quoting from Henry T. Terry, Essay on Negligence, Selected Essays on the Law of Torts, 263, cited by defendant:
It is not the general statement of the law that troubles us. There is no material difference between the authorities cited by appellant and those relied on by appellee so far as the principle of law is concerned. In the Kapphahn v. Martin Hotel Co. case already referred to it is further said: 'If a harmful consequence was not reasonably foreseeable, that is, was an improbable consequence, one which could not reasonably have been anticipated, there is no negligence.' 230 Iowa at page 747, 298 N.W. at page 906. But when is the court to say, as a matter of law, that danger should not have been reasonably anticipated, and when should the question be left to the jury? Who is to determine when the situation is such that a reasonably prudent man should not have foreseen the probability of injury resulting?
We confess the instant case is close. Questions of possibility or probability are not ordinarily easy. Defendant argues that an ice pick is not a dangerous instrumentality, and that sticking it into a wall did not make it one. Plaintiff on the other hand emphasizes that the nature and use of the premises and the location of the condition complained of are important. Defendant's premises were intended to be and were used by drivers of other transportation companies who in delivering freight in dim light and under crowded conditions would be compelled to pass in close proximity to the ice pick. Plaintiff was an invitee.
It is true we have said: 'It is sufficient to constitute negligence that the person charged should have foreseen his act or omission would probably result in injury of some kind to some person'; but we added: 'he need not have foreseen the particular injury that resulted.' Kaffenberger v. Holle, 237 Iowa 542, 547, 22 N.W.2d 804, 807, citing Haase v. Morton, 138 Iowa 205, 208, 209, 115 N.W. 921, 16 Ann.Cas. 350; Burk v. Creamery Pkg. Mfg. Co., 126 Iowa 730, 734, 102 N.W. 793, 106 Am.St.Rep. 377, and cases cited; Doyle v. Chicago, St. P. & K. C. Ry. Co., 77 Iowa 607, 42 N.W. 555, 4 L.R.A. 420; 38 Am.Jur. 667, 671, section 24; annotation 155 A.L.R. 157.
It is not a sufficient answer to these authorities to point out that the...
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