Powers v. Iowa Glue Co.

• Decision Date: 24 June 1918
• Docket Number: 30376
• Citation: 168 N.W. 326,183 Iowa 1082
• Parties: JOHN POWERS, Appellee, v. IOWA GLUE COMPANY, Appellant
• Court: Iowa Supreme Court

168 N.W. 326

183 Iowa 1082

JOHN POWERS, Appellee, v. IOWA GLUE COMPANY, Appellant

No. 30376

Supreme Court of Iowa, Des Moines

June 24, 1918

Appeal from Polk District Court.--W. S. AYRES, Judge.

PLAINTIFF claims he was injured because the defendant, his employer was negligent in not providing him a safe place wherein to work. He has verdict and judgment, and defendant appeals.--Modified and affirmed.

Modified and affirmed.

Miller & Wallingford and Oliver H. Miller, for appellant.

J. W White and Thos. A. Cheshire, for appellee.

SALINGER J. PRESTON, C. J., LADD, EVANS, and STEVENS, JJ., concur.

OPINION

SALINGER, J.

I.

In so far as Instruction 12, offered, withdrew the allegation that defendant permitted the place where plaintiff was injured to become unsafe from deposits of grease, the instruction was given because the court eliminated grease.

The instructions eliminate every charge of negligence except two: First, that defendant permitted its platform, at the point where plaintiff was injured, to become unsafe and dangerous, because of deposit thereon of particles of glue, which made the surface of the platform at that place "very slick," knowing that plaintiff, in the performance of his work, would be required to walk upon, pass over and upon the platform at that place; second, that defendant permitted water to fall on this platform at the point where plaintiff fell, and there freeze and form ice. It is complained there was no evidence to support either of these claims.

II. We gather appellant claims the court should not have submitted the case to the jury at all, because it had charged that plaintiff could not recover if his injury was due to a deposit of glue made by himself or his fellow servants, and because the evidence shows conclusively that his injury was caused by nothing but glue thus deposited. Whether the jury was bound to find that the injury was due to such deposit, we consider elsewhere. For present purposes, it suffices to say that, even if that were so, there would still be a case for the jury, if it might find that the place where plaintiff was working when injured, was unsafe because of ice formed there. Whether ice made said place unsafe is considered elsewhere.

III. If we assume that a conclusive showing of glue so deposited would force a direction for defendant, it must still be determined whether the jury was bound to find that the injury suffered by plaintiff was due solely to glue deposited by himself or his fellow servants.

It must be admitted that, if nothing is to be considered except an answer to a peculiarly framed leading question, answered by plaintiff on cross-examination, it would have to be held the injury of plaintiff was caused by glue deposited by himself or Israel so recently before the injury as that defendant had no opportunity to remove the glue, even if that was its duty. But in our opinion, this one answer in cross-examination does not take from plaintiff the right to have the jury consider, in connection with that answer, all the testimony adduced by plaintiff, and the physical facts disclosed by the evidence. A careful examination of the record as a whole satisfies us that, though plaintiff did answer this one question as he did, the jury might rightly find, upon the evidence as a whole, that the condition of plaintiff's working place was due to deposits of glue and formations of ice that had been making and forming, off and on, for days. Without elaborating upon the testimony, we have to say the jury could find the "slickness" of the place where plaintiff was injured had existed for and on three or four days prior to the injury, and on every morning on which plaintiff worked; that this place was "never clear from glue," except "a couple of times" when the weather was not cold; that more or less glue was falling on this place every time that sacks of glue were trucked. In a word, the jury might find, upon the evidence as a whole, that the conditions that caused plaintiff to be injured were constant and of quite long standing.

The discussion just had disposes, also, of an isolated statement on part of the witness Israel that he does not believe there was any ice present the night before plaintiff was injured, when barrels were being taken out; and of like testimony on part of the plaintiff.

IV. Originally, the plaintiff claimed that ice was formed by water from melting snow and ice, which was gathered on the covering of the platform on which plaintiff was hurt; and that such water ran through the covering, and caused ice to form on the platform. On the request of the defendant, this was withdrawn. But it is true that, while this eliminated water gathered on the covering and running through its cracks, the jury was still permitted to say whether, in some manner, defendant permitted water to fall on this platform, and there to freeze and form ice. And the next complaint is that there was no evidence to support a claim that any sort of water was in any manner permitted to fall on the platform, and there freeze and form ice.

Plaintiff and his witness Israel testified that there was a covering over the platform, and that water dripped upon this platform from said covering. They explain that this was due to water leaking from pans handled on said upper platform, or covering. To be sure, this is not evidence to support the allegation of the petition as it stood before the court narrowed it. But it is evidence that some kind of water in some way fell upon the platform on which plaintiff was injured; and so far, the instruction given does not lack support in the evidence. Both said witnesses, or the two between them, add that, on the morning on which plaintiff was injured, and on all mornings in freezing weather, this dripping made the lower platform "slick," frosty, and slippery; that ice from dripped water was present that morning; and that the weather at this time was freezing weather. We do not overlook the claim that the ice was of such recent formation as that failure of defendant to remove it was not negligence. But that is a distinct proposition, to be considered by itself. Whatever immunity this may create for defendant, whatever excuse there may be for not removing ice, if there is evidence that it fell and froze, an instruction that submits whether it fell and froze is not erroneous for lack of support in testimony.

V. It is argued that, even if ice or glue had been upon the platform where plaintiff was injured for so long a time as that it may not be said the injury was due to glue deposited at the time of the injury, and so long as to charge defendant with knowledge of its existence, that yet the place where plaintiff was injured did not have a heavy coat of ice, and was just a reasonably slippery place; wherefore, the place was not perceptibly unsafe. We think that, under the evidence, it was a question for the jury whether ice and glue had been on this place for a sufficient length of time and in such manner as to charge defendant with notice thereof.

The jury could find, from the testimony as a whole,--although a contrary conclusion might have been reached, also,--that it was the duty of neither plaintiff nor of Israel to clean the place where plaintiff was hurt. Be that as it may, as all claim for the failure of plaintiff to clean the place is bottomed on the argument that defendant did not know, and in the exercise of reasonable care could not have known, of the presence of ice and glue, our holding that the jury could find defendant did or ought to have known, disposes of the contention that defendant is benefited by the failure of plaintiff to clean the place.

VI. The jury could find, from the testimony as a whole, notwithstanding there was some from which contrary inference can be drawn, that it was not the duty of either Powers or Israel to clean the place where plaintiff was hurt.

VII. Without setting out the evidence, we have to say that we have read it; and that, whatever may be the effect of it, the jury could find either that Israel was or was not a fellow servant of plaintiff, or find that he was a vice-principal.

VIII. The plaintiff made a statement in writing to one Mahaffey. We may assume it conflicts with testimony given by plaintiff and weakens it. But, in view of explanations made by plaintiff, and of testimony as to the circumstances in which the statement was made, this conflict and its effect upon the case for plaintiff was for the jury.

IX. Appellant, in dealing with Errors 36 to 40, declares, in Proposition 4, that "the court erred in sustaining plaintiff's objections to questions propounded by defendant to Dr. Leir and to Dr. Stoner on cross-examination, and in sustaining plaintiff's objections to questions propounded by defendant to Dr. Stoner when called to the stand as a witness on the part of defendant, for the reason that the plaintiff had waived the prohibition of the statute." This is, in effect, the naked, "old-fashioned assignment of errors," in a very broad, general, and loose form. No one can, from reading it, have the slightest idea of just what is presented for review. The argument of the proposition deals with a large number of exclusions, and fills some 14 pages of print. Notwithstanding this great elaboration in argument, we are of opinion that, under the rules, Proposition 4 may not be considered.

It was said, in Mennenga v. Mennen, 182 Iowa 1147, 166 N.W. 486:

"Most of the remaining assignments of error are simply restated in the brief of counsel, but are not argued, and must, therefore, be considered as waived."

We are in no doubt that the mere restatement of an "assignment of error," and not argued, presents nothing for appellate review. But, if any inference may be drawn from this language...