Perkins v. Schmit Const. Co.

• Decision Date: 22 November 1932
• Docket Number: No. 41629.,41629.
• Citation: 215 Iowa 350,245 N.W. 343
• Parties: PERKINS v. SCHMIT CONST. CO. (TWO CASES).
• Court: Iowa Supreme Court

215 Iowa 350

245 N.W. 343

PERKINS

v.SCHMIT CONST. CO. (TWO CASES).

No. 41629.

Supreme Court of Iowa.

Nov. 22, 1932.

Appeal from District Court, Worth County; J. J. Clark, Judge.

These suits at law involve the question of the defendant's negligence and the contributory negligence of Milford Perkins. At the close of the plaintiff's evidence, the district court sustained the defendant's motion for a directed verdict, and the plaintiff appeals in each case.

Affirmed.

E. M. Sabin, of Northwood, for appellant.

H. D. Kepler, of Northwood, and Miller, Miller & Miller, of Des Moines, for appellee.

KINDIG, J.

Two cases are here involved. They were consolidated in the district court and tried as one case on the theory that the same question is embraced in each suit. Likewise, these cases are consolidated for disposition on this appeal.

In the one case, the appellant, Julia Perkins, as the next friend of Milford Perkins, a minor, brings the action in the minor's behalf against the Schmit Construction Co., the defendant-appellee. Julia Perkins commenced the other suit in her own behalf against the Schmit Construction Co., the defendant-appellee.

These suits grew out of an accident on October 22, 1930, wherein Milford Perkins, aforesaid, a minor eighteen years of age, broke his right leg when he placed it as a brace against an iron pipe belonging to the appellee. The pipe rolled over the leg of Milford Perkins, causing a fracture thereof. Consequently, the one suit above named was brought against the appellant in behalf of Milford Perkins, the injured boy, for the purpose of recovering the damages to which he himself is entitled; while the other proceeding was commenced by Julia Perkins, his mother, to obtain the damages due her because of the injuries to her son. At the close of the appellant's evidence in each case, the district court sustained the appellee's motion for a directed verdict on the theory: First, that the latter was not negligent; and, second, in the alternative that Milford Perkins was guilty of contributory negligence. Judgment was entered accordingly. From that judgment, appellants appeal in each case.

Some time before the accident, the appellant Julia Perkins, the mother of the appellant Milford Perkins, for a valuable consideration, granted to the Great Lakes Pipe Line Company, its successors or assigns, an easement of right of way over her farm in Worth county, for the purpose of laying, maintaining, operating, re-laying, and removing at any time “a pipe line or pipe lines for the transportation of oil or oil products, gas, and water. * * *” For the purpose of operating under the easement, the Great Lakes Pipe Line Company contracted with the appellee, construction company, to lay the pipes for the aforesaid line on the farm of the appellant Julia Perkins, in accordance with the easement granted. Accordingly the appellee hauled upon the farm of Julia Perkins steel pipes “six inches in diameter and weighing between 600 and 675 pounds each.” Each pipe, according to the stipulation, averaged approximately 36 feet in length. It was appellee's purpose to place the pipes end to end beneath the surface of the ground in a ditch to be constructed therefor, in order to form a connected conduit across the farm. Apparently, after the pipes were thus placed, the dirt previously excavated was to be replaced in order that the owner of the land might again pass to and fro over the surface. In the course of establishing the work, the appellee first laid the pipes on the top of the ground in a general northerly and southerly direction end to end (but yet unfastened) in a cornfield on the aforesaid land. There was no room to drive a team and wagon on the farm between or around the pipes.

This was the condition of the pipe line construction when the appellant Milford Perkins and a younger brother went out to the field on October 22, 1930, for the purpose of husking corn. These boys had with them a team and wagon. Before they came to the pipe line in the cornfield, the boys asked a member of appellee's “gang” if they could “drive across” the iron pipes laying on the ground. The appellant Milford Perkins testified that this man answered: “Yes, go ahead, drive across.” Whereupon the boys continued husking corn and drove across the pipes whenever it became necessary while going back and forth through the cornfield. That they did all the forenoon of October 22, 1930. Again in the afternoon they crossed the pipes. By so proceeding, the boys apparently crossed the pipes six times in the morning and once in the afternoon. On the second attempt to cross a pipe in the afternoon, the front wheels of the wagon went over, but the hind wheels thereof rolled the pipe. Three stakes were put in front of the pipe by the boys to prevent the rolling. Nevertheless the pipe rolled. Hence the boys replaced the stakes. The younger brother was in the wagon driving the team, while the appellant Milford, standing on the ground, placed his right foot against the pipe for the purpose of assisting the stakes in holding it while the hind wheels of the wagon went across. When the younger brother started the horses, the pipe again rolled and forcibly came in contact with Milford's right leg, thereby causing the fracture.

I. It is first argued by the appellee that the appellants have not proven it guilty of negligence.

Appellee was negligent, the appellants contend: First, because it placed the pipes upon the ground so near each other that the appellant Milford Perkins and his brother could not drive the team and wagon between them; second, because the pipes were not “bridged” in such a way as to permit the team and wagon to pass over the same; and, third, because appellee's employee directed the boys to cross the pipes in a way which amounted to an assurance that it was safe for them to do so.

Obviously under this record there is much to sustain appellee's contention. Nevertheless, for the purpose of disposing of the case, it is assumed without deciding that the appellee was negligent, and that such negligence constituted the proximate cause of the injury received by Milford Perkins.

[1] II. Under the assumption aforesaid, it now becomes necessary to determine whether Milford Perkins at the time in question was guilty of contributory negligence. Generally speaking, contributory negligence is peculiarly a question for the jury, rather than for the court, to decide. Murphy v. Iowa Electric Company, 206 Iowa, 567, 220 N. W. 360, and cases therein cited.

[2] This, however, is not always true, for under some facts and circumstances it is the province of the court and not the jury to determine whether or not the contributory negligence is such as to bar a recovery. Barboe v. Sioux City Service Company, 205 Iowa, 1074, 215 N. W. 740;Murphy v. Iowa Electric Company (206 Iowa, 567, 220 N. W. 360), supra. In the case at bar there is no conflict in the evidence as to what the appellant Milford Perkins did or did not do at the time he was injured. His actions upon the occasion of his injury are set forth in the record without dispute. Therefore no jury question arises at this juncture.

Even though the foregoing be true, yet there could be a jury question, under facts and circumstances not here revealed, if the conduct of Milford Perkins were such that there might fairly be different opinions with respect to it, and one man honestly and reasonably would say it was in accord with ordinary prudence, while another, just as...