Pomerantz v. Pennsylvania-Dixie Cement Corp., 40788.

• Decision Date: 20 June 1931
• Docket Number: No. 40788.,40788.
• Citation: 212 Iowa 1007,237 N.W. 443
• Parties: POMERANTZ v. PENNSYLVANIA-DIXIE CEMENT CORPORATION.
• Court: Iowa Supreme Court

212 Iowa 1007

237 N.W. 443

POMERANTZ

v.PENNSYLVANIA-DIXIE CEMENT CORPORATION.

No. 40788.

Supreme Court of Iowa.

June 20, 1931.

Appeal from District Court, Polk County; Loy Ladd, Judge.

Action for damages sustained from stepping into hot ashes on defendant's premises. Verdict and judgment for plaintiff. Motion to set aside verdict, judgment notwithstanding the verdict entered. Plaintiff appeals.

Reversed in part; affirmed in part.

Lappen & Carlson, of Des Moines, for appellant.

Stewart & Hextell, of Des Moines, for appellee.

MORLING, J.

The petition, as it stood at the time of the submission of the case to the jury, alleged “that * * * plaintiff at the invitation, insistence and request of said defendant's agents went onto and upon the premises of the said defendant corporation and while walking on the regular laid out path * * * for the purpose and intent of carrying out the instructions of the defendant's agents, as given him, the said plaintiff stepped into a mound of ashes which were in the path and in the road of his walking and which from all appearance, were placed there for the purpose of passing and walking over the same; that said ashes were hot * * * That because of said ashes maintaining excessive heat, which from all outward appearances did not show or indicate that the same were hot, being so hot, that the said plaintiff caused his feet to become severely burned * * * That the existence of the dangerous and hot ashes and cinders upon the defendant's property in the condition as the same were at the time the plaintiff sustained his injuries was a dangerous situation under the complete control of the defendant and the failure of the defendant to find the same and to remove the same or to protect the plaintiff from entering into the same, constituted negligence and the maintenance of a nuisance by the defendant.”

At the conclusion of plaintiff's evidence, defendant moved for a directed verdict, because, among other grounds, “upon the petition as now substituted there is no sufficient allegation there of negligence to warrant the court in submitting the case to a jury upon any theory. * * *” Motion was overruled, was at the conclusion of all the evidence renewed, and again overruled. The jury brought in a verdict for plaintiff upon which judgment was on the same day entered. The next day defendant was given ten days to file motion for new trial, and motion for judgment notwithstanding the verdict. After the five days, but within the ten days, defendant filed “exceptions to instructions, motion for new trial and motion for judgment notwithstanding the verdict,” the first part of which consisted of exceptions to instructions, the second “motion for new trial” on the usual grounds, and the third “motion for judgment notwithstanding the verdict,” among other grounds “for each and every reason set forth in the motion for a directed verdict at the close of plaintiff's testimony. * * *” The judgment entered on this motion recites that the matter came on “for final determination on the defendant's exceptions to the instructions and the defendant's motion to set aside the verdict of the jury and defendant's motion for new trial, and defendant's motion for judgment notwithstanding the verdict of the jury, and the Court * * * finds that defendant's motion to set aside the verdict of the jury heretofore rendered should be sustained. The court further finds that the defendant's motion for judgment notwithstanding the verdict of the jury should be sustained.” It was adjudged that defendant's motion for judgment notwithstanding the verdict be sustained and the petition dismissed on its merits. Plaintiff appeals.

[1] I. Plaintiff argues that the motion was not timely. He ignores in his abstract and arguments the order granting an extension made the next day after...