Sample v. Schwenck, 48100

• Decision Date: 28 July 1952
• Docket Number: No. 48100,48100
• Citation: 54 N.W.2d 527,243 Iowa 1189
• Parties: SAMPLE v. SCHWENCK.
• Court: Iowa Supreme Court

Page 527

54 N.W.2d 527

243 Iowa 1189

SAMPLE v. SCHWENCK.

No. 48100.

Supreme Court of Iowa.

July 28, 1952.

Rehearing Denied Sept. 19, 1952.

Jaqua & Lovrien, of Humboldt, for appellant.

Rider & Bastian, of Fort Dodge, and Garfield, Baker & Miller, of Humboldt, for appellee.

SMITH, Justice.

Plaintiff's intestate, Joseph ('Little Joe') Waugh, was a farm employee of defendant. He was killed August 2, 1950, when a granary fell on him as he was helping to raise it.

Plaintiff seeks damages for his death alleging, in four specifications, defendant's failure to provide a safe place to work, reasonably safe tools and equipment, adequate support for the board upon which the jacks were set and supports and braces sufficient to prevent the building from slipping off the supports. In a second count plaintiff alleged general negligence relying on the doctrine of res ipsa loquitur.

The trial court, at the close of plaintiff's evidence, directed verdict for defendant holding plaintiff had failed to prove any of the specific allegations of negligence and that the doctrine of res ipsa loquitur did not apply. The correctness of this ruling is the question here.

I. Count one of plaintiff's petition seems to have been drawn with section 88.14, Code 1950, I.C.A., in mind to preclude any defense of assumption of risk or waiver of defendant's negligence by plaintiff's intestate. The trial court, on plaintiff's motion, struck such defense from the answer. No complaint is made here of the ruling. Nor is any defense of contributory negligence involved as it could only be pleaded in mitigation of damages. Rule 97, Iowa R.C.P., 58 I.C.A.

The evidence was without material conflict. Giving plaintiff the benefit of every legitimate presumption and inference we must conclude with the trial court that it was insufficient to go to the jury on Count I.

Defendant's farm where the injury occurred was being operated by one Corwin Dudley who seems however not to have been present the day of the accident. The granary was approximately 18 or 20 feet long east and west by 10 feet wide and was empty. Apparently the purpose was merely to raise it a little, clean out a considerable accumulation of debris--oats and oat hulls worked over by rats--and possibly to rebrient it somewhat.

Defendant and another employee, Everett McCabe, commenced the work the afternoon of August 1, the day before the accident. Decedent Waugh joined them the second day. The west end of the building had by that time already been raised and pushed from the south with jacks. Defendant had borrowed two pump jacks and himself owned a small screw jack. Old fashioned discarded railroad ties--hewn, not sawed--were used for blocking.

At the time of the injury (between 2 and 3 o'clock P.M.) McCabe had taken the tractor over to the elevator about a quarter of a mile away, for more ties. When he was over there with Frank Asa, who lived in the elevator tenant house, Mrs. Dudley, wife of defendant's tenant, drove up to them hurriedly and told them 'Little Joe' was caught under the granary. They hurried over to the scene and found defendant trying to get the building raised enough to release him. He was caught under the south edge of the building at or near the southeast corner.

We have only the testimony of Asa and defendant as to the situation, as neither McCabe nor Mrs. Dudley was called by plaintiff. Waugh lay with head toward the west, his right arm and leg and right side of the body under the edge of the building.

Defendant himself, as plaintiff's witness, gave the more connected and detailed account of the operation and situation up to and at the time of the tragedy:

'The three of us worked all morning on that building. * * * we raised the (east) end and we dug out, raked out oats and oat hulls from the south side and some from the east end and * * * north side. * * * we used a long handled shovel. All three of us did some of that work. The sills under the building were 6 X 6 the length of the building. There was no foundation * * * other than the sills. There were two sills * * * about a foot and a half in from the sides. There were (2 X 6) stringers above the sills and the floor onto that. * * * The debris * * * filled the space pretty well from the bottom of the stringers up to the floor. * * * Rats had been working there, that was one of the reasons for raising the building. We got the east side (end) * * * raised. We placed the jacks * * * right next to the sills * * * against the plate that goes around the building * * * below the stringers.

'I think we used three jacks * * *. We raised the east end all at once gradually. * * * We started the building on the southeast corner and raised it with a screw jack first, then we blocked it and put one of the bigger jacks under it. We then went ahead and started over to the northeast corner. * * * We had the bigger jacks located one at the north side of the east side (end) * * * and one toward the south side * * *. We had two inch wood pieces under the jacks. They were about eight inches wide and a couple of feet long. When we raised the building the jacks pushed the pieces of wood down very little. We continued to raise the building * * * until we got what we thought was level. We did not put any bracings or blocking under the east side * * *. One of the jacks under the east side * * * went over as the building went over. * * * We did not have any blocking under the east side * * *. I sent Mr. McCabe over to the elevator to get more ties. * * * the east end of the building was standing on two jacks.'

'Joe Waugh and I were there when McCabe left. Just before the granary fell I was on the east side of it sawing a tie in two or just finished. I was facing the northwest * * *. I think it went straight down.'

On cross-examination defendant said: 'The building was raised about fourteen inches above the level of the ground. We were going to put the ties under the south wall first. The ties were to be pushed under the side * * * so they would either be flush with the siding possibly in an inch or something like that * * * lengthwise with the side of the building.'

Also: 'We were cleaning out under the building back about a foot and a half. * * * We had moved the west end of the building about three feet. We had not moved the east end at all. We had not had any trouble prior to the accident with the building sliding off the supports. * * * I never told Mr. Waugh or Mr. McCabe to go under the building for any purpose. I told them several times not to go under * * *. We had a discussion about the matter and the dangers of going under the building. From where I was on the east end * * * I could not see Waugh on the south side of the building. * * * Just before the accident happened Mr. Waugh said 'I believe I see a package of cigarettes under there' and he had no more than got it out of his mouth than down the building come. I believe it was practically on the way down * * *. It made a little noise * * *. I think I saw (it) kind of jiggle or shake like and I immediately went around where Joe was.'

There is no evidence decedent uttered any word or sound after the building went down. Pictures taken the day after the accident and before there was any change in the situation show the southeast corner of the building resting on the ground and the other corners on blocks. The southwest corner was not quite as high as the northwest one.

Asa testified: 'The jack under the east end had been tilted, tipped--I wouldn't say which way but it had been supporting the building and it had slid or skidded or something.' There is no testimony showing why this one jack tipped. The evidence shows the soil around the building was not loose. They had to dig holes to work the jack handles to get the building started. The deputy sheriff who visited the scene the next day testified: 'The jack that was near the southeast corner was leaning towards the north * * *. It was setting on a board under the building * * *. It (the board) must have been about three feet or so long and about two inches thick.' On cross-examination he said the jack was not a screw jack.

Defendant testified they discarded some ties as unsuitable for blocking. The condition of those actually used is not shown nor is there any showing of any defect in the jacks.

II. Plaintiff in argument says 'the trial court seemed to be of the opinion there should have been 'some expert testimony that the manner of raising and blocking the building was not proper.'' The plaintiff then proceeds to argue that such an operation on an Iowa farm was not the subject of expert testimony, being usually performed by farmers and their employees without calling in professional movers. Assuming that to be correct the argument becomes something of a two edged sword. If it was an amateur job, the mere use of amateur tools and equipment could hardly be considered negligence.

Plaintiff also argues the railroad ties 'were uneven, rounded on the edges, and not such blocking as a reasonable and prudent employer would use for supporting a building.' The evidence however shows quite clearly the accident was not due to use of defective ties. The pictures show the building still blocked under the three corners which had been blocked. The one corner that was down had been temporarily left on the jack awaiting McCabe's return with more ties.

If it be assumed the failure of the jacks to sustain the load was due to some hidden or latent defect in the instrumentality itself, defendant would not be liable unless there was a showing he knew or in the exercise of reasonable care should have known of it. 56 C.J.S., Master and Servant, § 247. See Bergman v. Altman, 127 Iowa 693, 104 N.W. 280.

Plaintiff says the jacks were set 'in loose dirt that had been worked by rats.' But this is not the Record. The rats had worked under the building. The soil around it was not loose. There is no evidence the jack went down in loose...