Printy v. Reimbold

• Court: Iowa Supreme Court
• Writing for the Court: STEVENS, J.
• Citation: Printy v. Reimbold, 200 Iowa 541, 202 N.W. 122 (Iowa 1925)
• Decision Date: 10 February 1925
• Docket Number: 36524
• Parties: THOMAS PRINTY, Administrator, Appellant, v. JOHN REIMBOLD, Appellee

202 N.W. 122

200 Iowa 541

THOMAS PRINTY, Administrator, Appellant, v. JOHN REIMBOLD, Appellee

No. 36524

Supreme Court of Iowa, Des Moines

February 10, 1925

Appeal from Lee District Court.--JOHN E. CRAIG, Judge.

SUPPLEMENTAL OPINION SEPTEMBER 29, 1925.

ACTION in the name of the administrator, to recover damages to the estate of his intestate. The verdict for plaintiff was set aside, and a new trial granted. From this ruling the plaintiff appeals.

Affirmed.

B. F Jones and Hollingsworth & Hollingsworth, for appellant.

O'Harra Walker & Sheridan, for appellee.

STEVENS J. FAVILLE, C. J., and DE GRAFF and VERMILION, JJ., concur.

OPINION

STEVENS, J.

I.

This is an action to recover damages for the death of Mae Printy, appellant's intestate. The cause was tried to a jury, which returned a verdict for the plaintiff for the full amount asked. The motion of appellee for a new trial, based on numerous grounds, was overruled in all particulars except two: (a) That the court inadvertently misled counsel by statements as to what the instructions relative to the main question of law involved would be, before the arguments were made to the jury; and (b) error in the 13th paragraph of the charge to the jury, and the refusal to give a requested instruction.

Before entering upon a discussion of the legal questions involved, it is necessary that a detailed statement of the facts be made. The facts upon which our conclusions of law are based, are without substantial conflict or dispute.

On the evening of February 22, 1922, at the invitation of one Benjamin Miller, deceased, her sister, and a young man by the name of Howbert, went in a Ford coupe from Keokuk, Iowa, to Nauvoo, Illinois, a distance of some 15 miles, to attend a dance. The route pursued from Keokuk to Nauvoo was over the bridge which crosses the Mississippi River opposite the former place, and over a highway which follows the meanderings of the stream to Tenth Street in the latter city. The party left the dance about 2 o'clock on the morning of the 23d, in the same Ford coupe, to return over the same route to Keokuk.

Plats of the city of Nauvoo and of the route traveled by the party after they left the dance, indicate that the streets which intersect each other at right angles lie due north and south, and east and west; but they are not so described in argument.

We gather from the record that the streets are laid out somewhat with the river, which flows on three sides of the city. Tenth Street, over which the party started to Keokuk, lies in a northeasterly and southwesterly direction, and intersects with the highway leading out of the city toward Keokuk, at a point near the river. Instead of proceeding on Tenth Street to the point of intersection with the highway, the driver of the car turned to the right onto Parley Street, went two blocks north thereon, and proceeded in a northwesterly direction along said street in the direction of the Mississippi River. At a point a few hundred feet distant from the river, the road angled to the left, and approached the river nearly at right angles, and approximately due west. A short distance farther west, the road turns to the left and to the southeast along the river, for a distance of about two blocks, and then follows one of the streets of the city, intersecting with Tenth Street about one block below the street on which the car turned into Parley Street. Instead of turning to the left, and following the highway described above, the driver of the car continued west along a private road leading to a dock or ferry landing owned by appellee. Before reaching the dock, the road turned by a gradual curve slightly toward the southeast.

Without discovery of their peril, the car was driven upon the dock and precipitated into the river, which, at the point where the car landed, was about 10 feet in depth. Miller succeeded in breaking the glass in one of the doors of the car, through which he crawled out, and reached the shore. The other occupants of the car were drowned.

Photographs of the highway and of the wharf and surroundings were introduced in evidence by both parties. Measurements were also taken, showing the distances between important points.

The highway east of the point where it intersects with the road which turns southeast along the river, is about 26 feet in width; but, as it approaches somewhat nearer the dock, it has the appearance of being expanded to a considerably greater width, extending to the river. Almost directly in the center of the highway, as the car approached the river from the east, there was a telephone pole, and a small shed or tool house, against which some lumber was piled.

The car, in reaching the wharf, had to pass around the telephone pole and the shed, near to the river bank. The highway described above, turned to the left before the telephone pole and shed were reached. The distance from the shed to the river is shown by the testimony to be 11 or 12 feet. To the right, as the car proceeded west, and somewhat to the east of the shed and near the bank, there was a launch with a white top, elevated upon barrels and other material. The car, in reaching the dock, had to pass by the launch and within a very few feet of it, and around the telephone pole and shed. The ground in the vicinity described is, we gather, approximately level. The road leading around the telephone pole and shed to the dock is made of cinders, and is owned and maintained by appellee, and used by travelers taking and leaving the ferry, which crosses the river to Montrose, on the Iowa side.

There appears to have been a beaten track around the pole and shed, the route followed by the car to the dock. The distance from the shed to the opposite side of the highway, which the driver should have taken, is about 26 feet. Miller testified that, as he approached the dock, the lights of his car were thrown upward by a depression in the road, and that he did not discover the peril until the car went upon some planking near the dock, when he saw the water in the river. Miller further testified that, when he arrived at the dock, before he discovered that they were in a place of danger, he thought the car was going upon a small bridge or culvert at the intersection of Tenth Street with the highway leading in the direction of Keokuk, and that a portion of the bridge or culvert had been washed out.

It is conceded that there were no lights or barriers in the vicinity of the dock, or other warnings or barricades of any kind to prevent a traveler upon the highway from approaching the dock in the manner already indicated.

The explanation offered by Miller for turning from Tenth into Parley Street, and to the point where the car went into the river, was that he thought he was on the right road to Keokuk. He evidently became confused as to direction. He had little familiarity with the streets of Nauvoo, but testified that he remembered that there was a turn in the road at or near the culvert at the lower end of Tenth Street.

Appellee requested the court to instruct the jury that, if it found from the evidence that appellee owned the dock and wharf in question, and was in possession thereof, then, when deceased and her companions went thereon, they became trespassers, and appellee owed them no duty except that of not willfully or wantonly injuring them. The instruction was, by the court, marked "refused."

In his motion for a new trial, appellee set up, as one of the grounds thereof, that the court informed his attorney that the requested instruction, or one of like import, would be given, and that, in reliance thereon, the cause was argued to the jury upon that theory. This was one of the grounds on which the motion was sustained.

The court, in granting new trial, is clothed with a large discretion; and unless it appears that such discretion was abused, the ruling will not be disturbed. We are not disposed to interfere with its ruling in this instance. The first ground upon which the motion was sustained, appealed peculiarly to the court's discretion, and we are not disposed to disturb the ruling. In view of our conclusion upon the other proposition decided, that the judgment must be affirmed, we need not further discuss this point.

II. The order of the court overruling all of the other grounds of the motion, except as indicated above, narrows the remaining questions to be passed upon by us to such as arise out of the alleged error in the giving of Paragraph 13 of the instructions to the jury.

The petition alleged various and numerous acts of negligence, all of which were submitted to the jury without formal challenge by appellee to the instructions in relation thereto. At least, the record does not disclose that formal exceptions were preserved to any of the court's instructions to the jury, except Paragraph 13.

This instruction, in substance, advised the jury that the owner or occupier of real property is under no obligation to make the same safe, or to maintain it in any particular condition for the benefit of trespassers, intruders, mere volunteers, or licensees, going thereon without his invitation, express or implied; but further informed the jury that, if such owner or occupier expressly or impliedly invites the public or any particular member thereof to come upon his premises, he assumes the duty toward them of exercising reasonable care to see that same are free from dangerous obstructions, pitfalls, and the like, which may result in their injury. Proceeding further in this instruction, the court submitted to the jury the question as to whether, at the time the car was precipitated from the dock into the river, deceased was on the premises of appellee as an invitee.

The court did not, in ruling upon the ...