Roller v. Independent Silo Co.

• Decision Date: 13 November 1951
• Docket Number: No. 47862,47862
• Citation: 242 Iowa 1277,49 N.W.2d 838
• Parties: ROLLER et al. v. INDEPENDENT SILO CO.
• Court: Iowa Supreme Court

Page 838

49 N.W.2d 838

242 Iowa 1277

ROLLER et al. v. INDEPENDENT SILO CO.

No. 47862.

Supreme Court of Iowa.

Nov. 13, 1951.

F. C. Gilchrist, Laurens, and Loth & Melton, Fort Dodge, for appellants.

Shaw & Shaw, Pocahontas, Cory & Sackett, Spencer, and L. E. Matteson, St. Paul, Minn., for appellee.

MANTZ, Justice.

Plaintiffs' action is to recover damages which they claim were caused by certain negligent acts on the part of the defendant in the erection of a silo on the premises of plaintiffs near Rolfe, Iowa. They claim that such negligent acts caused a fire which destroyed a barn and other buildings on the premises of plaintiffs. They further claim that such negligence was the direct and proximate cause of the damages suffered; further, that they did not by any conduct contribute thereto. Defendant generally and specifically denied the claims of plaintiffs that it was negligent and pleaded that the plaintiffs were guilty of contributory negligence. When plaintiffs rested, defendant moved for a directed verdict on the ground that no negligence on the part of the defendant had been shown. Defendant interposed a counterclaim for the cost of the silo. The court sustained the motion and directed a verdict in favor of defendant. Plaintiffs indicated intention to appeal. The parties then stipulated that the disposition of defendant's counterclaim should be held in abeyance pending the outcome of the appeal to be taken. Plaintiffs then gave notice of this appeal.

I. The principal questions involved in this appeal are three in number:

(1) Was the defendant negligent in the construction of the silo in the manner complained of by plaintiffs?

(2) Was such negligence, if shown, the proximate cause of the fire which destroyed the barn and other buildings of the plaintiffs?

(3) Were plaintiffs guilty of contributory negligence?

All of these were fact questions and the burden was upon the plaintiffs to establish each of them by a preponderance of the evidence. In passing upon said questions the evidence is to be considered in the most favorable light on behalf of plaintiffs.

II. There is little conflict in the evidence. The principal dispute arises over conclusions and inferences which may or may not arise from certain shown or admitted facts. The ownership of the premises; its occupancy, the purchase of a silo to be erected on the farm by the defendant; its erection and location with reference to other buildings, the fire and destruction of the buildings--are matters not in dispute.

Plaintiffs owned the real estate which was situated near the town of Rolfe, Iowa. Plaintiffs are brothers and sisters, with the brothers occupying and operating the farm. It was quite well improved. Electric power and lights came from a high line near the premises. Practically all the buildings were wired and used electricity for lights and power--the house, barn, chicken and incubator house, hog house, machine shed, corn crib and a pump. All this wiring had been in operation for a number of years and prior to June 18, 1949, there had been no trouble arising therefrom. The main or primary wires came from a transformer which was on a pole at the road on the west side of the farm.

The barn faced west. It was wired by wires entering the west end and continuing through and leaving at the east end. The conduits at each end were of hollow metal about a foot long. At the west end the wires came from a yard pole 90 feet west of the barn and passed through the conduit; went east through the barn and went out through the conduit on the east end; then curved or looped upward to three insulators attached to the east end of the barn and then went to a jet pump in the yard about 30 feet from the barn. The wire insulators at the east end of the barn were 22 feet from the ground.

In the construction of the silo the defendant furnished two men and these were aided by the Kennedy Bros. One Weisbrod for defendant was on the ground and supervised and directed the construction work.

The silo to be constructed was to be 40 feet high and 16 feet in diameter. The defendant picked its location which was to be close to the east end of the barn. It would be about 2 1/2 feet from the three wires where they left the barn on the east end. As a part of the silo there was a 32 1/2 ft. rounded metal chute close to the barn. This chute was to be attached to the silo running up and down. The chute was in sections and was put together on the ground. About 10 to 11 feet from the bottom a 2 X 4 was wired to the inside of the chute and to this was attached a rope running upward to a hoist on the top of the silo. Before they started to raise the chute Lawrence Kennedy suggested that when raised the chute would be close to the barn and the wire, and might do damage and he suggested the moving of the wires. Weisbrod was then on top of the chute. Lawrence Kennedy was to hold the lower end of the chute and those on the rope were W. C. Kennedy and the defendant's helper. To the suggestion of Lawrence, Weisbrod stated that he had been told how to do it and that 'they were going to do it that way.' Lawrence had to use his hands to hold the lower end while the two on the rope standing on the ground pulled the rope to lift the chute. The chute weighed about 400 lbs. and they found it unwieldy and hard to lift to an upright position. The evidence shows that as it was raised it scraped the east end of the barn and there was evidence from which it can be inferred that the upper end struck the conduit and wires and in a way got them out of place. As the space between the barn and chute was small they had difficulty in getting the chute past the wires. Kennedy says that in order to get it into position they had to lower it three or four times. W. C. Kennedy, who was on the rope helping lift the chute testified in part: 'Before we started to raise it (the chute) my brother said to the boss that we would like to take down the wires or else change the position of the chute. The boss answered 'this is the way we will take it up'. * * * It (the chute) rubbed the barn approximately the whole way up and hit the wires also. I noticed it hit the wires. It hit the long wire and the loop wires both. When it rubbed up against the barn, it went up to where those wires were nailed to the barn (insulators) and looped and hit the wires. Mr. Weisbrod told us to run it back down again * * *. We had to raise it with a great deal of force when we pulled on that rope. Whatever it hit, it hit hard. I could not do anything to stop it from doing that.'

The weather was quite dry on the 16th and 17th of June 1949. The silo was completed on the 17th and defendant's employees left. There was no trouble with the electric power the 16th and 17th. Early in the morning of the 18th there was a heavy rain from the east and this was accompanied by lightning. The lights went off. One Thompson, a lineman, came to the Kennedy home to investigate and found a fuse blown out in the transformer. After putting in another fuse he left but shortly afterward the power went off. He came back and put in another fuse in the transformer and looked over the outside lines for twisted wires or what is termed a 'short' but found none. He again left and before he reached Rolfe about 1 1/2 miles away he heard the fire whistle and at once returned to the Kennedy farm. There he found a fire on the east end of the barn right close to the inside opening of the conduit. The fire destroyed the barn and other buildings.

It was plaintiffs' claim that the striking of the heavy chute on the conduit and wires dislodged it to such an extent that the insulation was scraped and damaged and the heavy rain moistened the damaged wires and caused a short and the fire resulted. The evidence showed that the cable as it entered the conduit had three wires all separately insulated. There was expert testimony that if the insulation or covering of the wires was broken or dislodged moisture would likely cause a short circuit and a fire would ensue. This wiring had been in operation for many years. No trouble had been experienced. There was no question as to the location of the fire. There was evidence that the wiring had been damaged and displaced by raising the chute and it seems to us it might be fairly inferred that in the raising of the chute damage had been done to such wiring.

There was some other evidence touching the condition of the wiring. From the record made we feel there was a disputed fact question as to whether the defendant was negligent in the manner complained of by plaintiffs. When different persons might draw different conclusions from the record a fact question is generated and it is the duty of th court to submit such matter to the jury. This court has considered this question many times. On this question of when and under what circumstances the trial court should direct a verdict see Odegard v. Gregerson, 231 Iowa 325, 12 N.W.2d 559; In re Coleman's Estate, 238 Iowa 768, 28 N.W.2d 500; Falt v. Krug, 239 Iowa 766, 32 N.W.2d 781; Hebert v. Allen, 241 Iowa 684, 41 N.W.2d 240; Lawson v. Fordyce, 234 Iowa 632, 12 N.W.2d 301. Vol. 8 Iowa Digest, Trial, k142, 143, cites many cases where the rule is announced.

The jury could find that the fire started close to the wiring at the east end of the barn. This part of the wiring was of standard materials and had been in use for years without giving any trouble. There is in the record ample evidence that in the raising of the heavy, unwieldy and cumbersome chute the wires as they entered the east end of the barn had been struck and were in a different position after the chute had been raised. There is evidence that Lawrence Kennedy felt the manner of getting the chute in place was liable to cause harm and he so warned Weisbrod but his advice was ignored. While there was no one who could positively say that the cable as it entered the conduit had been damaged yet we think that such result...