Stoddart v. Idaho Concrete Products Co.

• Decision Date: 13 May 1955
• Docket Number: No. 8053,8053
• Citation: 76 Idaho 417,283 P.2d 922
• Parties: Cleve STODDART, Plaintiff-Appellant, v. IDAHO CONCRETE PRODUCTS COMPANY, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 922

283 P.2d 922

76 Idaho 417

Cleve STODDART, Plaintiff-Appellant, v. IDAHO CONCRETE PRODUCTS COMPANY, Defendant-Respondent.

No. 8053.

Supreme Court of Idaho.

May 13, 1955.

Anderson & Anderson, Pocatello, for appellant.

Robert M. Terrell, Zener & Peterson, Pocatello, for respondent.

ANDERSON, Justice.

August 25, 1952, appellant (plaintiff) purchased between 800 and 1,000 concrete blocks approximately 8"' X 16"' X 8"' in size, weighing 35 pounds each, from respondent (defendant) Company. The blocks were delivered to appellant's property by respondent and were stacked in a pile about 10' long, 5' wide and 6' to 7' high, on the ground between appellant's house and a small house to the rear.

The evidence is conflicting as to whether the ground was rough or level. Appellant testified that a neighbor complained because the blocks leaned and might fall on children in the neighborhood; that there was a crack in the stack four to six inches wide at the top, which was apparent to appellant and looked dangerous, but he did not report this condition to respondent Company. There was also another crack about 1 1/2 inches wide.

Testimony on behalf of respondent was to the effect there was no crack in the blocks when piled and they could not have fallen by themselves.

August 26, 1952, appellant removed some of the blocks and on August 27, 1952, about 7:30 p.m., as he was removing more blocks from the pile and delivering them to a man in his employ, who was putting them in place in constructing a building to be used by appellant as a furnace room, the pile fell on his right leg and foot, causing the injuries complained of in this action.

Appellant testified he had just picked up two blocks from the ground about eight inches from the main stack, when it fell on him; that he was at the time three or four feet from it and had not touched it.

Respondent denied the existence of any negligence on its part, alleged affirmatively that any injuries sustained by appellant were contributed to or caused by the contributory negligence of appellant. At the conclusion of appellant's case, respondent moved for a nonsuit, which was denied by the court, as was a motion for a directed verdict made by respondent at the conclusion of its case. These motions were based on the ground that the evidence disclosed respondent had not been guilty of actionable negligence and that it further conclusively appeared appellant was guilty of contributory negligence as a matter of law.

A verdict was returned by the jury for respondent and judgment entered thereon, from which the appeal was taken.

In the case of Benson v. Brady, 73 Idaho 553, at page 557, 255 P.2d 710, 712, Justice Porter, speaking for this Court, stated:

"The voluntary use of an unsafe place to work, when other and safer places are available, constitutes contributory negligence, precluding a recovery for injury, if the danger is obvious or of such a character that an ordinarily prudent person would not incur it under the circumstances.' 56 C.J.S., Master and Servant, § 446e., p. 1266. See also, Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Scott v. George A. Fuller Co., 41 Cal.App.2d 501, 107 P.2d 55; 65 C.J.S., Negligence, § 122, p. 732.

'In Syllabus 2 in Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651, we held:

"Where one claiming damages for injuries contributes to injury by want of ordinary care by placing himself in a dangerous position where he might be injured, and does not exercise ordinary care in preventing injury to himself after being placed in such position, then mere fact that another was negligent will not relieve one injured from effects of his contributory negligence, and if person injured could have avoided such consequences by exercise of reasonable care and prudence no recovery can be had.'

'Under the facts in this case the question of contributory negligence was one for the jury, and the court did not err in instructing the jury thereon. Billeter v. Rhodes & Jamieson, 104 Cal.App.2d 137, 231 P.2d 93.'

In 65 C.J.S., Negligence, § 121, pp. 727-729, the following appears:

'One who knows and appreciates, or in the exercise of ordinary care should have known and appreciated, the existence of danger from which injury might reasonably be anticipated must exercise ordinary care to avoid such injury. One must also exercise ordinary care to avoid the consequences of another's negligence. Thus, where the defect or danger is patent or obvious, it is contributory negligence to fail to exercise ordinary care to avoid it. Conduct involving an undue risk of harm to the actor is contributory negligence, and one who by his voluntary acts or omissions exposes himself to danger of which he has actual or imputed knowledge is guilty of negligence, if, under the same or similar circumstances, an ordinarily...