Rodefer v. Turner

• Decision Date: 27 October 1942
• Docket Number: 46125.
• Citation: 6 N.W.2d 17,232 Iowa 691
• Parties: RODEFER v. TURNER et al.
• Court: Iowa Supreme Court

6 N.W.2d 17

232 Iowa 691

RODEFER v. TURNER et al.

No. 46125.

Supreme Court of Iowa

October 27, 1942

Appeal from District Court, Clinton County; D. V. Jackson Judge.

M L. Sutton, of Clinton, for appellant.

E. L. Miller and Glenn Cousins, both of Clinton for appellees.

STIGER Justice.

Plaintiff relied solely on the doctrine of res ipsa loquitur, her petition charging general negligence only. Decedent was last seen in the Midway Tavern between 11:30 and 12:30 o'clock on the night of April 30, 1940, and about 6:30 the next morning was found on the floor of an elevator shaft located on the defendant's premises in an unconscious condition. He died before recovering consciousness.

Defendant owned two buildings in Clinton, Iowa, situated at the southeast corner of 4th Avenue South and South Second Street. The Turner Building, a four-story brick structure, fronts west on South Second Street--a north and south street. The Turner Annex, a two-story building, is situated east of the Turner Building, facing north on 4th Avenue South. Between the two buildings is an areaway extending south from 4th Avenue a distance of about 75 feet to a wall at the south end of the Turner Building. The corridor then turns east at right angles between the rear of the annex and said wall about 50 feet to a dead end. At the north entrance for a distance of 42 feet south the corridor is 7 feet wide and for the remaining distance south it is 10 feet wide. The east and west way of this "L" shaped passage is 12 feet 3 inches wide.

The freight elevator adjoins the south wall of the east and west corridor and is located about 13 feet east of the west side of the north and south way. It is 6 feet 10 inches wide and 9 feet 4 inches long, there being a clear space of about 5 feet 6 inches between the elevator and the north side of the way. The bottom of the shaft opens into a tunnel leading into the basement of the Turner Building.

The first floors of the two buildings are occupied by tenants. The rear of the stores of the Turner Building face the north and south corridor. The Midway Tavern and Alden's Cafe are in the Turner Building. The rear door of the Midway Tavern opens on the north and south corridor about 25 feet south of the entrance to the way on 4th Avenue South. The rear door of the Alden Cafe is about 32 feet south of the entrance and the rear door of a barber shop opens on the south end of the way. Baumeister's Tavern is in the annex building and its rear door opens on the east part of the east and west areaway about 12 feet from the dead end and is about 28 feet east of the elevator. There were no lights in the east and west corridor, and the only light in the north and south way was a small electric bulb in the rear of the Alden Cafe about 25 feet north of the elevator.

The cement floor of the elevator shaft is seven feet below the level of the corridor. When Mr. Rodefer was found in the center of the floor of the shaft the elevator doors, which opened to the west, were open and the elevator was at the second floor.

Plaintiff's theory is that decedent left the rear door of the Midway Tavern about midnight and walked south about 40 feet to the east and west way, turned east and instead of passing down the east and west corridor north of the elevator, walked through the open doors and fell to the bottom of the pit sustaining the injuries that resulted in his death. There were no guards around the elevator and there were no handles on the inside or outside of the elevator doors. The function of this elevator is described by defendant's janitor, a witness for plaintiff, as follows:

"Q. Are you acquainted with the elevator shaft which is located in an areaway behind the Turner Building? A. Partly, yes. I never had much to do with it, but I know how she is situated and about it.

"Q. Well, what purpose does it serve there? A. Well, mostly for freight.

"Q. Where does the freight come from and where does it go to? A. Well, May Alden has freight going down into the basement for her stuff and--

"Q. Well, where does the freight come from and where does it go to? A. Well, it's stuff that we get upstairs, like beer and soft drinks, and we pull it up.

"Q. Beer and soft drinks up to the Turner Society? A. On the third floor, yes."

The Midway Tavern, located about 25 feet south of the north entrance to the corridor, maintains a neon sign on the Turner Building at the north entrance with an arrow pointing south. Plaintiff's evidence shows that during intermissions and after dances at the Modernistic Dance Hall, which is apparently east of the annex, patrons of the hall would go down the corridor and enter the Midway Tavern and Alden's Cafe for refreshments through their rear doors instead of using the front entrances on South Second Street. Evidence that patrons of the dance hall might proceed south of the Midway Tavern and cafe at night and walk east down the unlighted east and west corridor 38 feet to Baumeister's Tavern is unsatisfactory and unconvincing. Patrons desiring to go from the dance hall to Baumeister's Tavern would naturally enter the front door on 4th Avenue rather than to walk west of Baumeister's Tavern to the corridor and through the entire corridor to its rear door. The most that can be said of the use of the east and west corridor by patrons of the dance hall or others that night is that it was very rarely used.

I. Appellant's first assignment of error is that the court erred in sustaining defendant's motion for a directed verdict because the question of defendant's negligence and the proximate cause of decedent's injuries was for the jury. Appellant alleged in her petition that the falling of decedent into the shaft was the direct result of the negligent operation and maintenance of the passageway "and the elevator shaft and the openings thereto then under the exclusive control and management of defendants."

Defendant's answer admitted that "there is and was a freight elevator and shaft, owned and controlled by defendant, located at the south side of that part of said passageway or areaway extending east and west at the rear of the storerooms fronting on Fourth Avenue South."

Defendant's answer must be construed as an admission that it was in complete, exclusive control of the elevator.

"The necessity of complete and exclusive control of the instrumentality, for the application of the res ipsa loquitur rule, has been repeatedly referred to by the court." Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425, 433.

The elevator was at the second floor and the doors opened directly into the pit when Mr. Rodefer was found in the center of the floor "facing the south, sort of on his side, lying in a drawn-up position." There were no guard rails at the entrance to the elevator. One witness testified the elevator doors were never locked but the doors were always closed "so far as I know." There was testimony that they were open part of the time.

The circumstances were sufficient to generate a presumption of negligence, that the accident happened through want of care on the part of defendant. No evidence was introduced by defendant to rebut the presumption arising from the circumstances.

Appellant's position is that, based on the evidence, the most likely explanation of the accident is that Mr. Rodefer was last seen in the Midway Tavern about 12:30 A. M. on May 1, 1940, and said that he was going to get something to eat, probably at Mae Alden's Restaurant; that he left the Midway Tavern or the restaurant about 12:30 and turned to his right into the north and south portion of the corridor and as he reached the south part of the north and south way he turned east to go down to Baumeister's Tavern, the rear door of which was near the east end of the way. The doors of the shaft were open to the west and he "needed only to take one stride to the south before turning east and he would walk into the open shaft. The areaway at this point was dimly lighted by a small light in back of Mae Alden's Restaurant."

The following evidence tends to sustain plaintiff's theory that decedent fell into the pit soon after he left the Midway Tavern about 12:30: "He was unconscious. Well, it was quite cold that...