Schmidt v. Hayden
| Decision Date | 15 May 1928 |
| Docket Number | 38763 |
| Parties | ONEY SCHMIDT, Appellant, v. PERLE HAYDEN, Appellee |
| Court | Iowa Supreme Court |
Appeal from Des Moines District Court.--JAMES D. SMYTH, Judge.
An action to recover damages for personal injuries sustained by plaintiff through the alleged negligence of the defendant the owner of a dwelling house. From a directed verdict in favor of the defendant, the plaintiff appeals.
Affirmed.
Bush & Bush and Seerley & Clark, for appellant.
La Monte Cowles, C. M. Fischer, and Glenn F. Gray, for appellee.
ALBERT J. STEVENS, C. J., and DE GRAFF, MORLING, and WAGNER, JJ concur.
It appears from the record that the defendant was the owner of a dwelling house located at 100 Sweeney Avenue in the city of Burlington. On June 1, 1922, defendant rented the house in question by oral agreement to one Mrs. Ida Carel, for residence purposes, and thereafter Mrs. Carel and her family occupied the same. Plaintiff herein, Oney Schmidt, is the married daughter of Mrs. Carel, and, at various times during the occupancy of said property by the latter, lived with her mother, and paid her board. The accident out of which this ligitation arose occurred on June 15, 1924. It appears from the evidence that the house fronted north, and had a porch across the front, which was some 10 or 12 feet from the ground. Across the east end of the porch was a railing, consisting of a 2x4 near the floor, and certain uprights or supports, with a railing on top. The height of this porch seems to have been from 24 to 30 inches. It appears that the top railing became defective, and either rotted off or was removed, and, under instructions of the defendant, a piece of lumber was nailed in its place, with small nails, one end being nailed to the house. This piece of lumber not being sufficiently long to reach the corner post, a short block or other piece of lumber was nailed to it, and this piece nailed to the corner post.
That plaintiff, at the time in question, fell from the east end of this porch to the ground, and suffered serious and permanent injury, is not disputed. Plaintiff alleges two grounds of negligence, in separate counts of her petition: (1) Failure of the defendant, as owner of a dwelling house, to keep the premises in repair, as required by the Iowa Housing Law. (2) Negligence in making dangerous, defective, and insufficient repairs to a dwelling house, and thereafter renting it for residence purposes, without giving the tenant warning of the insufficiency and unsafe condition thereof.
The answer admits the ownership of the premises, and renting to Mrs. Carel under verbal lease, but alleges that by the terms of such lease the tenant agreed to make all necessary repairs, and also includes a general denial.
The door opening from the house to the front porch was about the middle of the porch, and the distance from the side of the door to the rail in question was about 18 inches. At the time of the accident, about 10 o'clock in the morning, the mother, Mrs. Carel, plaintiff, Wilbur Carel, brother of the plaintiff, and his wife were on the porch. Wilbur was sitting in a rocking chair, with his wife sitting on his lap. The rocking chair seems to have been about the middle of the porch, in front of the door. It appears that Mrs. Schmidt was standing between the rocking chair and the rail in question, with her back to the house. Mrs. Carel wished to enter the house, and as she attempted to open the screen door, plaintiff stepped backwards, to get out of her way, and this accident occurred.
If we assume, without deciding, that plaintiff has established both grounds of negligence alleged, the real question, and the one upon which the district court seems to have based his decision, is whether or not, under the evidence in the case, the alleged negligence of the defendant was the proximate cause of plaintiff's injury. Before we turn to the evidence, some particularly well established rules of law may well be noticed.
We have established the rule that a scintilla of evidence is no longer sufficient to call for the submission of a case to the jury. Meyer & Bros. v Houck, 85 Iowa 319, 52 N.W. 235. The direction of a verdict, in its last analysis, is always a question of the sufficiency of the evidence. First Nat. Bank v. Brown, 197 Iowa 1376, 199 N.W. 272. It is equally true that this court is reluctant to set aside a finding of the lower court that the evidence is insufficient, but it will do so where the record warrants it. Graham v. Chicago & N.W. R. Co., 143 Iowa 604, 119 N.W. 708; Nelling v. Chicago, St. P. & K. C. R. Co., 98 Iowa 554, 63 N.W. 568.
Our conclusion is that, when a motion is made to direct a verdict, the trial judge should sustain the motion when, considering all of the evidence, it clearly appears to him that it would be his duty to set aside the verdict if found in favor of the party upon whom the burden of proof rests. Meyer & Bros. v. Houck, 85 Iowa 319, 52 N.W. 235; Beckman v. Consolidation Coal Co., 90 Iowa 252, 57 N.W. 889; Barnhart v. Chicago, M. & St. P. R. Co., 97 Iowa 654, 66 N.W. 902.
Where a witness gives his conclusion, without stating the facts supporting such conclusion, especially when it is one bearing upon, controlling, or determining the ultimate question in the case, this court is not bound by such conclusion. Escher v. Carroll County, 159 Iowa 627, 141 N.W. 38; Patrum v. St. Louis & S. F. R. Co., 146 Mo.App. 332 (129 S.W. 1041); 22 Corpus Juris 728-733. In cases of this character, the wrongful acts of the defendant must have been the proximate cause of the injury. Doyle v. Chicago, St. P. & K. C. R. Co., 77 Iowa 607, 42 N.W. 555; Pearson v. Wilcox, 109 Iowa 123, 80 N.W. 228; Martinek v. Swift & Co., 122 Iowa 611, 98 N.W. 477; Anderson v. Wapello Coal Co., 151 Iowa 479, 131 N.W. 684. Where it is sought to establish by circumstantial evidence that the alleged negligence is the proximate cause of the injury, such evidence must exclude every other reasonable hypothesis. Asbach v. Chicago, B. & Q. R. Co., 74 Iowa 248, 37 N.W. 182; Neal v. Chicago, R. I. & P. R. Co., 129 Iowa 5, 105 N.W. 197; Tibbitts v. Mason City & Ft. D. R. Co., 138 Iowa 178, 115 N.W. 1021; Kearney v. Town of De Witt, 199 Iowa 530, 202 N.W. 253. We have also said that, where the evidence is in equipoise, the plaintiff must fail. George v. Iowa & S.W. R. Co., 183 Iowa 994, 168 N.W. 322.
Another rule of this court is that the cause of the accident must be clearly shown, and cannot be left to speculation or conjecture. Pearson v. Wilcox, supra; Martinek v. Swift & Co., supra; Anderson v. Wapello Coal Co., supra.
In the testimony, Mrs. Ida Carel says, after describing the situation as we have hereinbefore described it:
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