Smith v. Ullerich

• Decision Date: 20 September 1966
• Docket Number: No. 52133,52133
• Citation: 259 Iowa 797,145 N.W.2d 1
• Parties: Basil SMITH and Florence Smith, Appellees, v. Robert ULLERICH and Paul E. Underwood, Appellants.
• Court: Iowa Supreme Court

Page 1

145 N.W.2d 1

259 Iowa 797

Basil SMITH and Florence Smith, Appellees, v. Robert ULLERICH and Paul E. Underwood, Appellants.

No. 52133.

Supreme Court of Iowa.

Sept. 20, 1966.

Rehearing Denied Nov. 14, 1966.

Newman, Redfern, McKinley & Sabbath, Cedar Falls, for appellant Robert Ullerich, and O'Donohoe & O'Connor, New Hampton, for appellant Paul E. Underwood.

Parker, Sindlinger & Baker, Cedar Falls, and Kildee, Keith, Gallagher & Lybbert, Waterloo, for appellees.

MASON, Justice.

This is an action seeking damages for personal injuries sustained by plaintiff-husband. Plaintiffs allege in separate divisions of the petition specific negligence, res ipsa loquitur and loss of consortium. At the close of evidence defendants moved for a directed verdict, to withdraw certain specifications of negligence and to withdraw the division based on res ipsa loquitur. The trial court withdrew the issue of res ipsa loquitur and overruled the other parts of the motion.

Following a jury verdict for defendants, the trial court sustained plaintiffs' motion for a new trial and defendants appeal.

Plaintiffs' motion was based on 11 grounds. The trial court determined only two merited considerations, its failure to submit res ipsa loquitur and the question whether the verdict was so out of reason with the evidence as to shock the conscience of sense of justice because of hasty consideration by the jury.

In ruling on the motion the court expressed the opinion plaintiff were entitled to have their cases submitted on the theory of res ipsa loquitur. After reciting facts occurring during the trial and deliberations of the jury, which we will detail later, the court stated there was sound basis 'for the conclusion that substantial justice was not established in this case.'

Defendants assign as errors relied on for reversal the trial court's (1) failure to sustain defendants' motion for directed verdict, and (2) granting plaintiffs a new trial.

I. To support the first assignment defendant contend plaintiff-husband was contributorily negligent as a matter of law. While conceding the matter of contributory negligence is generally for the jury, they argue if plaintiff by his own testimony establishes without question that his own acts in some manner or degree contributed directly to his own injuries, there can be no recovery.

On the date of the accident plaintiff, Basil Smith, was assisting defendant, Robert Ullerich, and his hired man, defendant Paul E. Underwood, install a silo chute on a farm owned by Basil Smith's father and rented by defendant Ullerich. Defendant Underwood was defendant Ullerich's son-in-law. Plaintiff alleged that while he was working near the bottom of the chute, the hired man dropped a heavy electric drill which had been secured by a rope tied near the top of the silo and hung down through the chute to a point a few feet above plaintiff's head; in attempting to get out of the way of the falling drill, plaintiff fell several feet from his position on the silo to a concrete slab below, causing him serious injuries.

The silo chute had been constructed by the parties a few days prior to the date of the accident. It was 30 inches in width and 28 inches in depth, inside measurements, consisted of three sides with the silo acting as the fourth and was 27 feet 2 inches long. On the morning of the day in question the chute was loaded on a lowboy trailer and transported to the silo. A block and tackle was used to pull and drag the chute from the ground up to the intended position on the silo. In addition to the block and tackle two tag or guide ropes were attached to the upper portion of the chute to guide its lateral movement as it was being pulled into place. After the chute was pulled into place it was discovered some of the holes in its face plates did not line up with the securing bolts on the silo and it would be necessary to drill new holes in the chute. Defendant Ullerich had planned to combine beans after lunch and arranged for defendant Underwood to assist plaintiff in installing the chute. When plaintiff and Underwood returned to work, Underwood brought plaintiff's heavy-duty electric drill out of plaintiff's car to the silo. The drill was the type which has the handle as it rear rather than along the side.

The drill was tied to the bottom or loose end of one of the guide lines hanging from the top of the chute and Ullerich then climbed up near the top of the silo and pulled the drill up some distance inside the chute, tying the rope to one of the upper crossbars of the silo opening. The drill was suspended point down so as to be available for plaintiff's use in redrilling near the bottom of the chute and Underwood could raise or lower the drill to plaintiff as the work required.

Plaintiff improvised a safety device consisting of a V-belt and hay hook to enable him to hook himself to the silo doors while he did this work. The nature of the work and how it was to be done were discussed by plaintiff and Underwood prior to the hired man's going to the top of the silo to suspend the drill.

Plaintiff then climbed up several feet on the ladder formed by the crosspieces on the silo door to a point where his body was inside the lower portion of the chute. He weighed about 260 pounds so there was little room on either side when he was in the chute. There were two crosspieces attached inside the chute, the upper one a double two-by-four to carry its weight and the lower just to keep its flimsy sides from flapping. Plaintiff determined the lower brace would interfere with drilling the holes and should be removed. He called to Underwood to haul the drill up out of the way while he was removing the brace. Plaintiff's feet was approximately six feet off the ground and the drill approximately 18 inches above his head.

Up to this point there is no real dispute as to the facts. Plaintiff's evidence is that he started to climb down a few steps to where he wanted to drill the holes and called to defendant Underwood to lower the drill. Plaintiff had been unhooked the hay hook and was holding it in his right hand, his left hand was holding onto a step above him and he was looking down to where he was going to put his foot on a step. As he was climbing down, the drill suddenly dropped point down toward him into his line of vision, causing him to jump back to get out of the way and thus fall a distance of several feet to the concrete slab on the ground.

Plaintiff did not know where the drill was after the fall. Underwood came down from the silo to keep the hogs from rooting plaintiff while plaintiff's wife went for help.

As part of plaintiffs' case, portions of Underwood's deposition and earlier statements were received in evidence, to the effect that when he was untying the rope the drill was hanging from, the slack in the knot was released, the drill fell and it would not have done so if Underwood had held the rope as he should.

Defendants assert the foregoing facts show as plaintiff's own admission he called for a ten-pound electric drill, fitted with bit, to be lowered in the chute from its hanging position approximately a foot to 18 inches above his head for his use in drilling a hole for fastening the chute to the silo at a time when both his hands were occupied and he was looking at the ground. They contend if plaintiff had not called for the drill until he was in a place with his safety belt attached, ready to use the drill or if he had looked up or reached up to receive and guide the drill as it came down, either before or after he descended the one step, the accident would not have happened. They argue it was only logical for Underwood to assume plaintiff was ready to receive the drill when he asked for it.

We are not persuaded defendants' position can be sustained.

It is only the exceptional case in which the issue of freedom from contributory negligence should not be submitted to the jury--only where such negligence is so palpable, flagrant and manifest that reasonable minds may fairly reach no other conclusion; if there is any evidence tending to establish plaintiff's freedom from contributory negligence, the question is one of fact for the jury and the doubts should be resolved in favor of such submission. Goman v. Benedik, 253 Iowa 719, 721, 113 N.W.2d 738, 739, and citations.

We are satisfied the trial court was correct in submitting the contributory negligence issue to the jury. This is not the exceptional case in which reasonable minds could fairly reach no other conclusion than that plaintiff was contributory negligent.

II. Defendants argue in support of their next assignment based on granting a new trial after a jury verdict for defendants, that the major and primary reason for the ruling was failing to submit res ipsa loquitur and other reasons given were secondary or supporting. They assert plaintiffs did not establish the two foundation facts necessary for an instruction on the doctrine and thus were not entitled to a res ipsa loquitur instruction. So, we are told, there was no basis for granting a new trial and defendants are entitled to a reversal.

The court stated in its ruling plaintiffs were entitled to the benefit of the res ipsa loquitur doctrine and accordingly should have a new trial. After discussing reasons for this view the court considered the second question presented by plaintiffs' motion, whether the verdict was so out of reason with the evidence as to shock the conscience or sense of justice because of hasty consideration by the jury. (Fifty minutes after retiring to deliberate the jury was back in the courtroom with a verdict for defendants.) In conclusion the court stated it 'would not upon this ground...