Rauch v. Des Moines Electric Co.

Decision Date06 March 1928
Docket Number36601
PartiesF. A. RAUCH, Appellant, v. DES MOINES ELECTRIC COMPANY, Appellee
CourtIowa Supreme Court

REHEARING DENIED JUNE 26, 1928.

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

Action for personal injuries, caused by the falling of an electric-light globe on a public street in Des Moines. A motion to direct a verdict for defendant was sustained. Plaintiff appeals.

Affirmed.

F. L Meredith and Samuel Berenbaum, for appellant.

Bradshaw Schenk & Fowler, for appellee.

KINDIG, J. STEVENS, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ., concur. EVANS, J., not participating.

OPINION

KINDIG, J.

The day of the accident here involved was June 14, 1921, and the place was the northeast corner of Fourth and Walnut Streets, in Des Moines. On this occasion, the plaintiff appellant, a resident of Chicago, was on the sidewalk, watching a Shrine parade passing along the street. Appellant, at the time, was near an electrolier owned by the Des Moines Electric Company, appellee, which concern is engaged in the manufacture, distribution, and sale of electricity for lighting and power purposes in said city and vicinity. This street light consisted of a pole in an upright position, carrying five electric light globes, one being immediately on the top of the "pole," while the other four are suspended from two cross-arms attached to the "pole." These cross-arms are about 11 1/2 feet from the sidewalk. From the center of the "pole" to the middle of the "globes" (suspended from the cross-arms), the distance is 14 inches. About 2 feet east of this "electrolier pole" is another iron "pole," to which are attached fire and police alarm signal boxes. Between the top of the "fire-alarm box" and the "cross-arm" of the "electrolier," the space is 5 feet, 10 inches.

Those "globes" are fastened to the "electrolier" by contact with the rim through the use of a flange, and are held in place by means of three or four set screws, which are put through the border into the groove of the "flange." Because of the "parade," the public thoroughfare was lined with people, and one Joseph A. Dengle, anxious to obtain a suitable place from which to view the display, climbed the "fire-alarm and police-signal pole," to a place from which he was able to take hold of the "cross-arm of the electrolier," in order to transfer his position onto that "pole." During this time, appellant was standing immediately under said Dengle, and when the latter threw himself over onto the "electrolier pole," one of the "globes" therefrom fell and struck the appellant, who was in the act of stooping over to pick up his suitcase, resulting in a head injury.

In seeking to recover from appellee, appellant alleges three grounds of specific negligence: that there was, first, neglect in not having said "globe" fastened securely to the "electrolier;" second, carelessness in omitting to have the proper number of screws in the "rim" which holds the "globe" in position; and third, failure to properly inspect the "globe," to see that it was firmly attached to its place in the "rim" which holds it. Appellee's answer was, in effect, a general denial. At the conclusion of the evidence, the court sustained appellee's motion for directed verdict, which was based principally upon two theories: that, first, appellant had proven no negligence committed by appellee proximately contributing to the injury; and second, the damage caused appellant was due to the intervening act of Dengle.

I. Referring directly to the allegations of appellant's petition, it is remembered that there are three charges of "negligence. " Nowhere in the record is there any evidence even purporting to sustain the second and third items thereof: that is to say, that the number of "screws" were insufficient, or that the inspection was not proper, did not develop during the trial.

Recovery, of course, must be had upon the allegation and proof of "negligence." Without this, appellant must fail. Therefore, we direct no further attention to these particular propositions.

II. However, appellant argues that his case should have been submitted to the jury upon the first claim of failure to use due care,--to wit, that the "globe" was not securely fastened.

Foundation for this is predicated upon the following testimony of appellant:

"I examined the globe several hours after it struck me on the head, and noticed that a set screw which holds the globe in position did not project into the interior circle of the globe at all."

Manifestly, such observation and the witness's intended conclusion therefrom are not sufficient to show "negligence" in the case at bar. Many reasons for this are apparent. Time was remote, and whether or not the position of the "screw" observed was the same as it was before the catastrophe, or got into the location described afterwards, or during the jarring caused by Dengle, does not appear. Moreover, there is not showing of any kind that the lack of projection "into the interior circle" in any way caused the fall. Proof is lacking that the exercise of due care required extension of the "fastener" into the "interior circle."

III. Noteworthy at this juncture is the following testimony of Dengle:

"I know it was through my action that the globe fell, I think; because, if I hadn't gone up on the electrolier, the globe would be up there now. I think it was my fault that the globe fell."

But appellant urges that, nevertheless, he is entitled to a reversal, because of the well known doctrine that the mere fact some other cause operates with the "negligence" of the defendant to produce the injury complained of does not relieve it (appellee) from liability,--citing as authority therefor Gould v. Schermer, 101 Iowa 582, 70 N.W. 697; Pratt v. Chicago, R. I. & P. R. Co., 107 Iowa 283, 77 N.W. 1064; Harvey v. City of Clarinda, 111 Iowa 528, 82 N.W. 994; Aga v. Harbach, 140 Iowa 606, 117 N.W. 669; Steburg v. Vincent Clay Prod. Co., 173 Iowa 248, 155 N.W. 337; Burk v. Creamery Pkg. Mfg. Co., 126 Iowa 730, 102 N.W. 793. A prerequisite for the application of that legal principle is proof of appellee's "negligence," and without the establishment of this primary necessity there can be no recovery.

IV. Recognition of another theory is now important. There must be causal connection between the alleged "negligence" and the injury sustained. Burden of bearing this "proof" was on appellant. Assuming that such substantiation was equally balanced, or as conformable to appellee's theory as that of appellant, then the duty in this regard has not been met. O'Connor v. Chicago, R. I. & P. R. Co., 129 Iowa 636, 106 N.W. 161; Ashcraft v. Davenport Locomotive Works, 148 Iowa 420, 126 N.W. 1111; Dingmon v. Chicago & N.W. R. Co., 194 Iowa 721, 190 N.W. 393.

Truly this "proof" of "causal connection" may be by either direct or circumstantial evidence, or both; yet, whatever method employed, the result...

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1 cases
  • Rauch v. Des Moines Elec. Co.
    • United States
    • Iowa Supreme Court
    • March 6, 1928
    ...206 Iowa 309218 N.W. 340RAUCHv.DES MOINES ELECTRIC CO.No. 36601.Supreme Court of Iowa.March 6, 1928 ... Appeal from District Court, Polk County; Joseph E. Meyer, Judge.Action for personal injuries caused by the falling of an electric light globe on a public street in Des Moines. A motion to direct a verdict for defendant was sustained ... ...

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