Plantz v. Kreutzer & Wasem
| Decision Date | 20 November 1915 |
| Docket Number | 30153 |
| Citation | 154 N.W. 785,175 Iowa 562 |
| Parties | FRED PLANTZ, Appellee, v. KREUTZER & WASEM et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED FRIDAY, APRIL 7, 1916.
Appeal from Marshall District Court.--CLARENCE NICHOLS, Judge.
ACTION for personal injuries. Opinion states the facts. Judgment for the plaintiff. Defendant appeals.
Reversed.
C. H Van Law, for appellants.
Carney & Carney, for appellee.
This is an action to recover damages for personal injuries. On or about the 8th day of August, 1912, plaintiff was employed by the defendants as a teamster in defendants' lumberyard, and was so employed for several days prior to receiving his injuries. On this particular day, he drove down into defendants' yards and took on a load of plank, and then was directed to drive into the shed to get some mop boards. He drove in the south door of the shed and proceeded northward through an alleyway, in the shed, to the north door, and stopped with his horses' heads right at or under the north door. Wilson, defendants' foreman, was with him at the time. Wilson went up a little ladder on one side of the alleyway and got the mop boards. The shed is about 60 feet long. The south door through which plaintiff entered is about 16 feet high. The north door is 8 1/2 feet high. There is lumber piled on either side of the shed. When he reached the north door, Wilson said to him: "Wait here, and I will get the mop boards." He got the mop boards and handed them to the plaintiff, who was then standing on the top of the loaded wagon. Wilson then directed him to wait a bit and said: "I will get a box of glass." Wilson got the box of glass and handed it to him, and said: "You want to hold the box of glass up." He set the box of glass on top of the loaded wagon. As he set the box of glass down in front of him, he held it with his left hand and reached over with the other hand to gather up the lines which were tied around a stake, or, as he described it, "off the deck or stake." Just as he reached over for the lines and grabbed them off the stake, the team started. Plaintiff hollered "Whoa " but the horses continued, and he came in contact with the upper part of the doorway and was knocked off and hurt.
Plaintiff's testimony is that, after he had received the mop boards and placed them on the loaded wagon, and Wilson had handed him the box of glass with directions to hold the glass up, he bent forward, reached for the lines, and grabbed them off the deck, or stake, and the team started. He says: "I just got hold of the lines when they started, all at once." The top of the north door, through which plaintiff attempted to pass, was 8 1/2 feet from the ground. The top of the loaded wagon upon which he was at the time was 5 1/2 or 6 feet from the ground. Plaintiff was 5 feet 10 inches tall. The height of the box of glass is not shown. Plaintiff's contention is that the horses started without any command from him to do so--started as soon as he grabbed the lines. Plaintiff received severe injuries. He charged the defendants with negligence. The acts, or omissions to act, which he charges constitute actionable negligence and the acts, or omissions to act, upon which he predicates his right to recover as for negligence, are stated in his petition as follows:
(1) Defendants were negligent in providing an unmanageable team for plaintiff with which to carry on his work; (2) defendants were negligent in providing an unsafe place in which to work, in reference to the situation of the lumber piles, alleyways, etc., and in that the doorway was so unreasonably low that plaintiff could not safely drive from said building on top of said load, and escape contact therewith, under the facts and circumstances as outlined in this petition; (3) defendants were negligent in failing to warn said plaintiff of his danger on the particular day in question, and in reference to the particular instance herein described; (4) defendants were negligent in failing to warn plaintiff of the danger in handling and managing said team; (5) defendants were negligent in so constructing their lumber shed and exit therefrom on the steep incline that the danger from contact with the top of said door was greatly increased.
At the conclusion of all the testimony, the defendants moved the court to direct a verdict for the defendants on the following grounds:
(1) Because there is no testimony in the case to sustain a verdict in favor of the plaintiff; (2) because the undisputed testimony shows that the plaintiff is guilty of such contributory negligence as to relieve the defendants of any liability; (3) because there is no proof showing that the defendants were guilty of any negligence rendering them liable; (4) because the undisputed evidence shows that the injury suffered by the plaintiff was due to the fact, or claimed fact, that the team started without any direction or command from the plaintiff, and that, by reason thereof, the plaintiff was taken unawares in going through the door or gate; and the undisputed evidence shows that the defendants did not know and were never advised, at any time, that the team which plaintiff was driving would start to move forward with a load without a command or direction or some effort on the part of the driver to start them; that, if the plaintiff was injured by reason of the starting of such team, or habit of such team to start without command or direction, such fact was not known to the defendants, and they were not in a position, nor were they required, to advise the plaintiff, or caution against any such hazard or danger; that any injury sustained by the plaintiff, by reason of the starting of the team without command or direction of the driver, was among the risks assumed by the plaintiff.
This motion was by the court overruled. The court, however, in the submission of the case to the jury, withdrew from their consideration, as a basis of negligence, the first, third and fourth specifications of negligence, and submitted to the jury only the second and fifth, saying to the jury:
"The claimed negligence relied upon by the plaintiff herein, and the only claimed negligence which the court submits to you for your consideration, is as follows: 'In providing the plaintiff an unsafe place in which to work, in that the doorway at the north end of the driveway, through the lumber shed, was so low as to be unsafe for the use of plaintiff as a teamster.'"
It was on this specification of negligence that the cause was submitted to and determined by the jury, and upon this specification, under the proof offered, the jury returned a verdict holding the defendants guilty of negligence, and the plaintiff free from any negligence contributing to his injuries. In its fourth instruction to the jury, the court said:
"The question for you to consider is whether the plaintiff has established by a preponderance of the evidence that the place in which he was required to work was not reasonably safe for him to use in performing his work as a teamster on account of the doorway on the north end of the driveway being of insufficient height."
And it thereupon directed the jury, in determining this question, to consider the height of the doorway, the arrangement of the lumber shed, its necessity for use by plaintiff, both with and without loads, the height of the loads likely to pass through the same, and any other fact or circumstance bearing upon the question, and said:
"If therefrom you find . . . that such doorway was so low as to render the place unsafe for plaintiff's use as a teamster, and that such insufficient condition was due to a failure on the part of defendants to exercise ordinary care in respect thereto, then the plaintiff has established negligence on the part of the defendants in failing to furnish him with a reasonably safe place in which to perform his work," provided they found that this negligence was the proximate cause of the injury.
From the foregoing, it is apparent that this cause was submitted to the jury and determined upon the theory, first, that the defendants are negligent, if negligent at all, in that they provided for the use of the plaintiff as their teamster, this north doorway, with its opening but 8 1/2 feet in height, and left it to the jury to say that, as a matter of fact, the defendants were negligent in furnishing for the plaintiff an opening through which to pass, of 8 1/2 feet in height. To find the defendants guilty of actionable negligence, the jury must have affirmatively found that the defendants were negligent in maintaining the doorway at that height, and that this negligence was actionable, and the proximate cause of the injury.
There was no dispute as to the height of the doorway. There was no dispute that the plaintiff approached it from the south; that he stopped his horses with their heads under or at this opening. There is no dispute as to the height of the load on which plaintiff was standing. There is no dispute as to the purpose for which the plaintiff went there, or as to what he was doing, or that he intended, after he completed the load, to pass out through this doorway. The only question submitted to the jury as a basis for recovery, so far as the negligence of the defendants is concerned, was the fact that this doorway was but 8 feet 6 inches high. It is apparent that, as plaintiff approached this doorway, it was in plain view. That he knew approximately the height of this doorway is not in dispute. While upon the witness stand he testifies that the doorway through which he attempted to pass was about 8 feet high. He gives also the width of the door, approximately as the undisputed evidence shows...
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