Oltmanns v. Driver
| Decision Date | 13 June 1961 |
| Docket Number | No. 50172,50172 |
| Citation | 252 Iowa 1066,109 N.W.2d 446 |
| Parties | Henry OLTMANNS, Appellant, v. Leo DRIVER and Harry Grote, d/b/a Missouri Valley Farm Supply, and A. L. Thomas, Appellees. |
| Court | Iowa Supreme Court |
Carl V. Burbridge, Logan, and Page & Nash, Denison, for appellant.
Smith, Peterson, Beckman & Willson, Council Bluffs, and Michael Murray, Logan, for Leo Driver and Harry Grote, d/b/a Missouri Valley Farm Supply, and Raun & Franck, Denison, for A. L. Thomas, appellees.
This is an action, tried to a jury, for personal injuries sustained by plaintiff who fell while assisting in erecting a sectional corncrib on the farm of a neighbor with whom he exchanged work. The neighbor, for whom the corncrib was being erected, was originally a party defendant but has been removed from the litigation by a directed verdict from which no appeal has been taken.
Defendants are partners, doing business as the Missouri Valley Farm Supply, engaged in selling and erecting corn storage cribs and others structures.
For the purpose of this appeal, the facts are not in material dispute.
A neighbor of plaintiff purchased from defendants a sectional prefabricated corncrib to be erected on the purchaser's farm. As a part of the purchase agreement, defendants agreed to furnish and deliver the necessary materials and one man to assist in the erection of the crib. The purchaser was to furnish two men to assist. On an exchange-of-work basis between neighbors, plaintiff assisted in the erection of the corncrib as one of the men to be furnished by the purchaser. Plaintiff was without experience in erecting the particular kind of corncrib, and the work was done under the general supervision of Norman Salter, defendants' employee.
The prefabricated sides of the crib were first erected on the foundation and rather loosely bolted together. The looseness, for flexibility, in the siding was intentional to make easier the placing of the roof sections.
A part of the material furnished for the crib by the defendants was what was known as a 'drag,' a long box-like device which is put through the bottom of the crib on the floor, into which the drag feed of the corn sheller may be inserted at shelling time. The sides of this were prefabricated into a ladder-like device. They were composed of 2 X 3 inch pieces of wood, the same length as the diameter of the crib, with small boards, two or three inches wide, nailed from one 2 X 3 to the other in ladder-like fashion. The device was 16 inches wide by about 18 feet in length. One of these sections was raised to the top of the sides of the crib and used as a scaffold from one side of the crib to the other while placing the roof sections in place.
Because the length of the drag was the same as the inside diameter of the crib, it could not be properly centered but would reach the top plate of the side sections if slightly off center.
When defendants' man told plaintiff how this drag was used as a scaffold, plaintiff commented that he did not think it was safe. There was testimony that in the conversation about the safety of the scaffold defendants' man said, 'It's safe enough,' and 'Don't worry about that, it's all right,' and 'that they used that on all of the ones he worked on.' A 4 X 4 timber, previously cut to the right length to be used as a gin pole or center support, was placed under the scaffold. There was no evidence of any nailing or fastening together of any of the parts of the scaffold.
After receiving what he claims were assurances of safety, plaintiff went up to and on the scaffold. While plaintiff was standing on this scaffold assisting in the erection of the roof, it slid or slipped from its support and fell. In jumping from the falling scaffold, plaintiff suffered a fractured ankle.
The trial court submitted to the jury the questions of master and servant relationship between plaintiff and defendants, negligence of defendants, imputing negligence to defendants, proximate cause and damage, and the affirmative defense of assumption of risk by plaintiff. The jury returned a verdict for defendants. We, of course, have no means of knowing wherein the jury determined failure of proof on the part of plaintiff or the establishment by defendants of the affirmative defense.
The sole and only question involved in this appeal is the sufficiency of the trial court's instruction on assumption of risk in the light of the evidence presented and the exception noted.
'Comes now the plaintiff, at the time allowed by the court for objecting to and excepting to the instructions and except to the instructions as given for the reason the same do not include an instruction in the following form or in connection with the instruction concerning the assumption of risk: 'In connection with the matter of assumption of risk, you are instructed, if you find from the evidence, that prior to the time that the plaintiff went upon the scaffolding from which he fell, he told said Norman Salter the scaffold did not appear to be safe and said Salter assured the plaintiff the scaffold could be used in safety; that he had safely used a similar one previously and the plaintiff relied upon said statement in going upon the scaffold from which he fell. Then in that event if you find that in doing so he acted as a reasonably prudent person would under similar circumstances, the plaintiff cannot he held to assume the risk of going upon such scaffold.''
The request was treated as a timely request for an instruction and was overruled. The error claimed is in the overruling of this request and the insufficiency of the instruction as given.
The instruction as requested by plaintiff was not complete in itself, and if given would have required amplification. The request failed to mention the exception where the danger is so patent and apparent as to be obvious to any prudent person. Braddich v. Phillips Coal Co., 159 Iowa 402, 138 N.W. 406.
Even though the requested instruction was not sufficiently complete to require its submission to the jury, it was sufficient to alert the trial court to the claim of the plaintiff and the claimed insufficiency of the instruction as given. Kuehn v. Jenkins, 251 Iowa 718, 728, 100 N.W.2d 610, 612; Lehman v. Iowa State Highway Commission, 251 Iowa 77, 85, 99 N.W.2d 404, 409.
'It is a rule of law that where, because of the negligence of an employer or master, a risk or hazard is created which is greater than the usual and ordinary risks incident to the employment undertaken and where the servant or employee knows and is aware of such risk or hazard and voluntarily exposes himself to it, he is to be regarded in law as having assumed such risk and cannot recover for his resulting injury.
'As above stated, this claim is a special defense presented by the defendants and the burden of proof is upon them to establish it by a preponderance or greater weight of the evidence.
'If you find from the evidence before you that the defendants' employee or agent, Norman Salter, was negligent and that such negligence on his part resulted in the scaffolding in said building being defective so as to present an unusual or greater hazard than otherwise and you further find that the plaintiff knew and appreciated the danger of its use and with knowledge of said danger made use of said scaffolding he would in that event have assumed the risk of such negligence and he cannot recover.'
The instruction as given was correct as an abstract statement of the law, but it did not give to the plaintiff the benefit to which he was entitled under the affirmative defense interposed by defendants. The claim of the plaintiff that he did not assume the risk because of the assurances of safety of the defendants' agent was not submitted.
Braddich v. Phillips Coal Co., supra, 159 Iowa 402, 138 N.W. 406, 410, was a mine accident case where the...
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...facts, this defense was not established by the requisite degree of proof. See rule 344(f)(5), (6), (10), R.C.P., and Oltmanns v. Driver, 252 Iowa 1066, 1074, 109 N.W.2d 446. III. Neither is it apparent to me, as a matter of law, plaintiff was contributorially negligent or that the trial cou......
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