Pomerantz v. Pennsylvania-Dixie Cement Corp.
| Decision Date | 24 June 1932 |
| Docket Number | No. 41434.,41434. |
| Citation | 243 N.W. 283,214 Iowa 1002 |
| Parties | POMERANTZ v. PENNSYLVANIA-DIXIE CEMENT CORPORATION. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Frank S. Shankland, Judge.
The plaintiff, an invitee on the premises of the defendant, commenced this action at law to recover damages on account of injuries received by him while on said premises. Verdict and judgment for the plaintiff, and the defendant appeals.
Affirmed.
Stewart & Hextell, of Des Moines, for appellant.
Lappen & Carlson, of Des Moines, for appellee.
This is an action to recover damages alleged by appellee to have resulted to his left foot from coming in contact with some hot cinders and ashes on the premises of appellant located southwest of Valley Junction near the city of Des Moines and occupied as a cement plant, to which appellee had gone on the early morning of July 25, 1929, for the purpose of looking after and preparing some junk which he had previously purchased of appellant for removal and shipment in freight cars. The last is the third trial of this case in the district court. In the first trial, the jury failed to agree, but in each of the subsequent trials a verdict was returned in appellee's favor. A motion for a new trial and a motion for judgment, notwithstanding the verdict based upon the alleged insufficiency of the allegations of the petition to state a cause of action, were sustained by the court. Upon appeal, the ruling on the motion for a new trial was sustained, but the ruling on the motion for judgment, notwithstanding the verdict, was reversed. See same title, 237 N. W. 443.
The principal proposition relied upon for reversal on this appeal is the alleged insufficiency of the evidence to sustain the verdict. A somewhat extended description of the premises and narrative of the facts is essential to a clear understanding of the situation and to a proper decision of the questions urged. The evidence as to the following matters, among others not so important, is without dispute:
The main building of the cement plant extends east and west for probably 300 or 400 feet, and is reached from the north over a public highway. There are extensive railway tracks on both the east and west sides of the plant. The place where the injuries complained of are alleged to have occurred is reached by way of a road constructed and maintained by appellant out of cinders and dry slurry, a semiburned cement product. The road thus constructed and maintained extends along the east and west ends of the main building. The premises in the rear of this building are reached by means of this road, thus constructed and maintained. Appellee entered the premises over the road east of the building. At the southeast corner of the main building this road turns slightly to the southwest and then to the south to a point 300 or 400 feet from the building, where a portion of the junk was piled. Installed in one of the buildings is a rotary kiln 240 feet in length by 11 feet in width. The coal used for firing the kiln is known as powder coal, and is ground very fine. Before grinding the coal, it is thoroughly dried. This is done in a drier which is located south of the road where it turns to the southwest after passing the southeast corner of the main building. The work of drying the coal is carried on by two shifts of twelve hours each commencing at 6 a. m. and 6 p. m., respectively. The ashes and cinders that accumulate in the drier room from this process are removed by the use of wheelbarrows and placed in a pile 40 or 50 feet from the building and south of the roadway above described. Several wheelbarrow loads are removed by the party in charge during each twelve hours. At intervals, the yard foreman removes the pile of ashes and cinders from the place where they have been dumped from the wheelbarrows to some other part of the premises. The pile of ashes and cinders on the day in question was somewhat larger than is customarily permitted to accumulate. Some of the junk purchased by appellant was still in place, and was too large to permit removal without being cut. The cutting of these large pieces of iron was being done by the use of an acetylene torch. An employee of appellant was secured by appellee to do this work while off duty. This was done early in the morning and late in the evening.
Appellee arrived on the premises on the morning in question between 5 and 6 o'clock. Shortly before 7 o'clock, Gruber, who was cutting the iron for appellee, inquired as to the time. It was his duty to punch a time card at 7 o'clock. Appellee started up the road above described from a point 300 or 400 feet south of the main building to the office to find out what time it was. It is at this point that a sharp conflict appears in the testimony as to every material fact directly connected with and pertaining to the place at which the alleged injuries were received. Appellee testified that, while he was in the act of walking up the road toward the main building at a point 125 or 150 feet south thereof, he stepped with his left foot into some hot ashes on the left side of the roadway and was severely burned; that he took off his shoe, called for help, and was assisted by two men employees of appellant to the office. All of the witnesses called in behalf of appellant who testified on this point...
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