Schmeling v. Ott

• Citation: 388 N.W.2d 195
• Decision Date: 31 March 1986
• Docket Number: No. 84-1887,84-1887
• Parties: Paul SCHMELING, Plaintiff-Appellant, v. Roger Kent OTT; Pulley Freight Lines, Inc.; and Northwestern Bell Telephone Company, Defendants-Appellees.
• Court: Iowa Court of Appeals

Page 195

388 N.W.2d 195

Paul SCHMELING, Plaintiff-Appellant, v. Roger Kent OTT; Pulley Freight Lines, Inc.; and Northwestern Bell Telephone Company, Defendants-Appellees.

No. 84-1887.

Court of Appeals of Iowa.

March 31, 1986.

Robert A. Nading, II, Ankeny, for plaintiff-appellant.

Thomas C. Farr of Peddicord & Wharton, Des Moines, for defendants-appellees Pulley Freight Lines, Inc. and Rogert Kent Ott.

L.R. Voights and James E. Gritzner of Nyemaster, Goode, McLaughlin, Emery & O'Brien, Des Moines, for defendant-appellee Northwestern Bell Telephone Co.

Heard by SCHLEGEL, P.J., and HAYDEN and SACKETT, JJ.

HAYDEN, Judge.

Plaintiff appeals an adverse judgment in lower court in this personal injury action in which the jury found plaintiff one hundred percent negligent and none of the defendants negligent. Plaintiff contends the trial court erred in: (1) not permitting plaintiff to present evidence of defendant Northwestern Bell's alleged failure to notify its repair crews of the damaged telephone pole until one hour after plaintiff sustained his injuries; (2) not submitting plaintiff's specifications of negligence that defendant Northwestern Bell had a duty to use all due haste to remedy the dangerous condition and that defendant Pulley Freight Lines, Inc.'s truck driver, inter alia, had a duty to have his vehicle under control at all times and to reduce his speed at an accident scene; (3) refusing to instruct the jury as to certain rules of law having application to this case specifically concerning the facts in relation to proximate cause, custom, and practice, instrumentality, agency and imputed knowledge; (4) erroneously stating the law in instructions concerning duty to warn; and (5) allegedly providing a final draft of jury instructions to plaintiff's attorney, allowing plaintiff's attorney to begin his final arguments based on those instructions, then interrupting the arguments informing plaintiff's attorney a particular instruction would not be used. We affirm.

On December 11, 1979, the plaintiff in this action, Paul Schmeling, was injured while investigating the scene of an accident which occurred shortly after midnight.

Evidence indicates that a Ricky Lattimer drove his vehicle into a telephone pole on Johnson Court in Des Moines. The pole, owned by defendant Northwestern Bell, broke off at a location two to three feet above the ground. The broken section came to rest on the ground, but remained in an upright position supported by a telephone cable attached near the top of the pole. The cable was strung over Johnson Court and traffic on the road passed under the cable. By law, Northwestern Bell was required to maintain the cable at a height of eighteen feet; due to the accident, the cable hung lower than this required height.

Shortly after the accident, the Des Moines Police arrived and notified Iowa Power and Light Co., Northwestern Bell, and Schmeling of the accident.

Schmeling's duties were as an accident investigator. Upon his arrival, the police advised him that Bell had been notified and gave him information necessary to complete his report. Schmeling testified that, at the time, he did not perceive that the lowered telephone cable presented a hazard to traffic.

Shortly thereafter, Roland Starbuck, a Bell cable maintenance supervisor, arrived at the scene. He examined the cable and concluded that it was "questionable" for clearances. Although he did not measure the height of the cable, Starbuck indicated that he thought it was quite possible trucks would have problems with it. Schmeling claims that Starbuck never warned anyone of the potential danger of the lowered cable, although this is disputed in the record.

Before leaving the scene, Starbuck contacted Clarence Jackson, the supervisor for the line crew with the necessary equipment to replace the pole. Jackson proceeded to the scene, viewed the damage, and then left. Apparently, Schmeling did not see or speak to Jackson.

At approximately 1:10 a.m. defendant Roger Ott was driving a truck pulling a thirteen-foot high trailer belonging to defendant Pulley Freight Lines, Inc. As he proceeded slowly down Johnson Court the top of the trailer struck the low-hanging cable causing the attached telephone pole to strike Schmeling's left hip shattering it. Evidence showed Schmeling suffered a ten percent permanent physical impairment to his lower left extremity with his left leg permanently shorter than the right due to his injuries.

Schmeling subsequently filed this action naming Roger Ott, Ott's employer, and Northwestern Bell as defendants. The case proceeded to trial in September 1984. The jury returned a verdict denying any recovery to Schmeling. Schmeling has appealed this result.

Our review of this law action is on assigned error. Iowa R.App.P. 4.

I.

Prior to trial, Northwestern Bell filed a motion in limine to exclude evidence of repair activities occurring after Schmeling's injury. Bell argued that anything that occurred after the second injury would not be relevant and could be prejudicial to the defense. It was stipulated by the telephone company that the necessary crew from the telephone company had not been notified at the time Schmeling was injured. Relying on this stipulation, the trial court sustained the motion in limine.

As an offer of proof, Schmeling called Charles Clark, a Northwestern Bell employee, to testify. Clark stated that Clarence Jackson did not notify him that repairs were necessary until 2:00 a.m., almost an hour after Schmeling was injured. Due to the motion in limine, this evidence was not presented at trial.

On appeal Schmeling argues that the trial court erred in not permitting him to present evidence concerning when the telephone crew was notified. He claims that such evidence was relevant to the specifications of negligence. We disagree.

The basic test of relevancy is whether the challenged evidence makes the desired inference more probable than it would be without the evidence. Carter v. MacMillan Oil Co., Inc., 355 N.W.2d 52, 55 (Iowa 1984). This determination is within the trial court's discretion. Id. A trial court also has the discretion to exclude relevant evidence when its probative value is outweighed by its prejudicial effect. Id. We reverse for abuse of discretion only when such discretion was exercised "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Rowen v. LeMars Mutual Insurance Co. of Iowa, 357 N.W.2d 579, 583 (Iowa 1984).

In the present case, we find no abuse of discretion. The only relevant inquiry is whether Bell, in the exercise of ordinary care, should have inspected and remedied the situation before the plaintiff was injured. What the telephone company did or failed to do thereafter has no bearing on the question of whether the accident involving Schmeling could have been avoided; it would not make any fact of consequence more or less probable.

Schmeling was at liberty to introduce evidence concerning Bell's conduct between the first and second accident. Anything that happened beyond this point was irrelevant and appropriately excluded by the trial court. We therefore affirm on this issue.

II.

Schmeling also argues that the trial court improperly instructed the jury concerning the telephone company's duty to repair the damaged cable and pole. Instruction 23 provided that Northwestern Bell had a duty to inspect its lines and poles and remedy defects or dangerous conditions within a reasonable time. Schmeling cites us to Claussen v. Cumberland Telephone & Telegraph Co., 126 La. 1087, 53 So. 357 (La.1910), and claims that a utility company has a duty to use "all due haste" to remedy dangerous conditions. We decline to adopt this standard.

In considering whether Bell acted in a reasonable time, the jury would properly take into account the surrounding circumstances, including the hazardous nature of the fallen cable. If the jury found the situation was extremely dangerous and required immediate attention, the telephone company would have a duty to act with some haste in remedying the problem. By the very nature of the facts, the length of time considered reasonable under the circumstances would be much shorter than it would be in a less dangerous situation. In essence, a reasonable time standard allows consideration of the immediacy of the danger. We see no reason to judicially impose the elevated duty of acting in all due haste.

III.

In his third assignment of error, plaintiff claims the court erred in failing to instruct the jury on several specifications of negligence concerning Northwestern Bell. Specifically, Schmeling argues that evidence supported instructions on the "last clear chance" doctrine, the custom and practice of utility workers to warn police officers of dangers, imputing knowledge of the employee to the employer, and the City's right to assume Northwestern Bell would exercise due care.

We have reviewed Schmeling's requested instructions and find no reversible error.

Parties to a lawsuit have a right to have their legal theories submitted to a jury so long as they are supported by substantial evidence in the record. Carter v. Wiese Corp., 360 N.W.2d 122, 132 (Iowa Ct.App.1984). A mere scintilla of evidence is not sufficient. Nolte v. Case, 221 N.W.2d 741, 745 (Iowa 1974). Schmeling's claims concerning Northwestern Bell's "last clear chance" to avoid the accident and the custom of utility workers to warn police officers of hazards are not supported by evidence in the record and do not satisfy this standard.

We also find that the failure to give the requested instruction on imputing knowledge of the employee to the employer did not prejudice the plaintiff. There was no dispute in the record regarding the telephone company's knowledge of the fallen cable. The two supervisors at the scene of the accident were the very persons who had the responsibility for repairs and warning of dangers. In essence, the only issues of...