Riggs v. Pan-American Wall Paper & Paint Co.
| Decision Date | 10 January 1939 |
| Docket Number | 44460. |
| Citation | 283 N.W. 250,225 Iowa 1051 |
| Parties | RIGGS v. PAN-AMERICAN WALL PAPER & PAINT CO. |
| Court | Iowa Supreme Court |
Appeal from Municipal Court of Des Moines; C. Edwin Moore, Judge.
Action at law to recover damages because of injuries alleged to have been sustained due to the negligence of the defendant company. Trial to a jury. Verdict for the plaintiff. Defendant appeals. Opinion states the facts.
Affirmed.
In action for injuries sustained when plaintiff, who was delivering paint to defendant's shipping room, at the exact place and in the exact manner directed by defendant fell down elevator shaft, question of plaintiff's contributory negligence was for jury.
Rippey & Seeburger, of Des Moines, for appellant.
Cosson, Stevens & Cosson, of Des Moines, for appellee.
Archie Riggs commenced this action against the Pan-American Wall Paper and Paint Company to recover damages, alleging that due to the negligence of the Paper Company he sustained injuries when he fell down an elevator shaft in the company's shipping room. There was a general denial and a plea of contributory negligence. The case was tried to the jury which returned a verdict in the amount of $1,000. Defendant has appealed.
Riggs on the 30th day of October, 1935, was employed by the White Line Freight Company in the City of Des Moines. On the day mentioned he was directed by his employer to deliver a shipment of paint to the warehouse of the Paper Company located at 1005 Locust Street. He had with him as assistant, Raymond Arbaugh. They arrived at the north entrance, which was on the alley, to make the delivery, about 1:30 in the afternoon. The paint was hauled in what was known as a tractor-trailer truck, which was eight feet wide, eleven feet high, and twenty-two feet long. The trailer part was backed squarely in front of the back door, the top of the trailer being about three feet above the top of the door. Arbaugh placed the cartons of paint at the rear of the truck and Riggs was to carry them in and place them in the warehouse where an employee of the company directed that they be placed. The cartons consisted of paper boxes of such size as to hold four gallon cans of paint. There is some dispute in regard to the exact size, but they were approximately one and a half feet square. Riggs was instructed to place the cartons near the elevator shaft, and to place them so that the label would be on the outside.
It is Riggs' claim that he had never before been in the building and that he did not know there was an elevator shaft in the room. However, there is evidence from which the jury could have found that he had made deliveries there some years before.
The building occupied by the Paint Company faces south. The offices are in the front part and there is a partition that separates the offices from the shipping room. The rear room is about nineteen feet wide from east to west, and about sixty feet long, north and south. There are no windows on the east and west sides, and none in the partition to the south, although there is a door. There is a door in the north part of the shipping room, through which the merchandise was being delivered. There are several pains of glass in the upper part of this door. In the north wall there are two windows. However, they are nine feet above the floor and are constructed of wire-glass. They had not been cleaned for some time, but, in the words of one of the employees of the appellant company, " they throw some light." There were electric lights in the room. Whether or not they were burning at the time of the accident, is in dispute. The elevator shaft was on the west side of the shipping room, fifteen feet and four inches from the north wall. The pit, or opening, was about four and a half feet square. It was protected by a railing, consisting of a single board, which looks, judging from the photograph that was introduced, to be a 2x4. This was thirty-two inches from the floor. At the east side this 2x4 was bolted at the north end and there was a slot in the south end so that the railing could be lifted when necessary. There was nothing between this 2x4 and the floor. There was no light in the basement at the time of the accident. The elevator was operated from the basement and there were no ropes or anything else above the railing. To the north of the elevator and abutting against the west wall was a table, referred to as a " wrapping table." The main part was a little higher than the guard rail. There was a solid back to this table on the south, which extended the full length of the north guard rail and about two feet above it. On the west side of this table there was a shelf, extending still higher, on which various articles of merchandise were stocked. To the east of this wrapping table, and parallel with it, was another small wooden table, about two feet wide and some five or six feet long. The southwest leg of this table was close to the northeast corner of the elevator pit. Upon this small table were scales and other equipment used. Due to the position of these tables one could not see the elevator pit as he came through the north door.
Riggs asked the employee of the Paper Company where to place the merchandise that he was delivering, and proceeded to do as directed. His story is that he picked up the first of the cartons of paint and walked over to the place where he was to put it, leaned over and placed it upon the floor, turned the case so that the label would be on the outside, and, as he straightened up, he fell backwards into the pit; that he did not know there was an elevator shaft there; he did not see one; that the guard rail on the east side of the pit was not in place but was up in the air.
The appellant in this case does not raise the question of negligence. It rests its right to reversal mainly upon the proposition that Riggs was guilty of contributory negligence and therefore not entitled to recover.
In the case of Nelson v. F. W. Woolworth and Company, reported in 211 Iowa 592, 231 N.W. 665, this court said at pages 602, 603, 231 N.W. at page 669:
" Assuming that appellant was an invitee, as distinguished from a mere licensee, it is not entirely certain that he negligently contributed to his injury. A solution of the problem is to be found in the facts and circumstances. Conflicting questions of fact are to be settled by the jury. If the facts are not in conflict, and it is plain that appellant was guilty of contributory negligence, then the court should direct a verdict accordingly.
‘ The presence or absence of contributory negligence, generally speaking, is peculiarly a question for the jury, rather than the court, to detect and settle.’ Murphy v. Iowa Elec. Co., 206 Iowa 567 (local citation, 571), 220 N.W. 360, 362.
When considering appellant's contributory negligence, two elements are involved: First, what did the appellant do? And, second, what was the effect of his action? Providing that either or both of said propositions present uncertainty, then there is a jury question concerning the existence of contributory negligence. While discussing this subject, we said in Murphy v. Iowa Elec. Co. (206 Iowa 567), supra, reading on page 572, 220 N.W. 360, 362:
‘ If there is a conflict in the evidence as to what the person accused of contributory negligence did or did not do, the question is then one for the jury. Likewise, even though it is known what was done by that individual in this regard, yet, if his conduct is such that there may fairly be different opinions with respect to it, and one man honestly and reasonably says it was in accord with ordinary prudence, while another just as sincerely and with equal reason contends it was not, then there is a jury question. * * * Consistent, however, with the above and foregoing doctrine, and in no way in conflict therewith, is...
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