Trout v. Talerico
| Decision Date | 05 February 1946 |
| Docket Number | 46803. |
| Citation | 21 N.W.2d 672,237 Iowa 285 |
| Parties | TROUT v. TALERICO. |
| Court | Iowa Supreme Court |
Herrick Sloan & Langdon, of Des Moines, for appellant.
Hallagan & Cless, of Des Moines, for appellee.
This is an action brought by Mrs. Grace Trout against Victor Talerico doing business as the Tally-Ho Club, for injuries sustained by plaintiff in a collision with a waitress employed by defendant. Plaintiff, a resident of Omaha, was in the Tally-Ho Club on the evening of July 8, 1944. She collided with a waitress, Mrs. Barkley, who was carrying two cups of hot coffee. The coffee spilled on plaintiff's forearm and on her leg, burning her. Plaintiff in her petition alleges negligence of the waitress and lack of contributory negligence on her part. Defendant denies the charges of negligence and alleges that plaintiff's injuries were due to her own contributory negligence. Defendant's motion for directed verdict was overruled and verdict rendered in favor of plaintiff. Motion for judgment notwithstanding verdict was overruled.
There are two errors assigned: (1) that the court erred in overruling defendant's motions; and (2) that the court was in error in sustaining plaintiff's objection to the admission of certain testimony of defendant offered on redirect examination.
The Tally-Ho Club is a restaurant owned and operated by defendant and located at 5601 Douglas Avenue, in Des Moines. The dining room is 32 feet north and south and 30 feet east and west. Guests enter the building through a door in the east wall north of the dining room, going into a hall, at the west end of which are rest rooms. From the hall they pass into the dining room by turning left through an archway about the middle of the north wall of the dining room. Inside the dining room, in its northeast corner, just east of the archway, is a coffee-making table where the waitresses obtain coffee to serve to the patrons. There are booths along the west, south and east walls of the dining room and in each of the four corners is a circular booth. In the center part of the dining room are movable tables and chairs. There are three booths along the west wall of the dining room between the southwest and northwest circular booths.
On the evening in question plaintiff and her husband a service man home on furlough, plaintiff's 15 year old daughter, Mr. Trout's mother and Mr. and Mrs. Paul Beck, a party of six, had been visiting at the home of a relative, Mr. Fred Lorenz, in Des Moines. About 7 p. m. the six persons named went to the Tally-Ho Club, arriving there about 7:10 p. m. They waited in the room north of the dining room until a table was available and then passed into the dining room where they were seated at a table slightly to the west of the center of the room and approximately seven feet south and a little west of the archway in the north wall. Their table ran east and west and was made by putting two small square tables together. North of the table at which they were seated there were no tables but there was one small table on the east, so that there was a passageway seven feet wide north and south, extending from the coffee table past their table to the west side of the room. Mr. Beck sat at the east end of the table and Mrs. Beck at the west end. Plaintiff sat on the south side of the table next to Mr. Beck and her mother-in-law sat on the same side next to Mrs. Beck. Plaintiff's husband sat on the north side immediately opposite plaintiff and at Mr. Beck's right, with the daughter immediately west facing Mrs. Catherine Trout. They were all engaged in conversation while eating, and plaintiff testified her husband arose and left the table. Before he returned and before she had finished her meal plaintiff got up to go to the rest room. She testified that when she arose from the chair she stepped in an easterly direction around behind Mr. Beck's chair and then walked north headed toward the archway. That after she passed Mr. Beck she saw the waitress approaching from the east carrying two cups of coffee in her left hand, and called to her; that the waitress was not looking ahead but was looking over her right shoulder and continued to do so. Plaintiff then backed up past Mr. Beck's right arm and against the table. There was a great deal of noise and plaintiff did not think the waitress heard her call out. It all happened very swiftly and there was very little time to do anything, but plaintiff insists the waitress was not looking ahead. It seemed to plaintiff that Mrs. Barkley was six or seven feet away when plaintiff first saw her. Thus the waitress was approaching plaintiff from the latter's right side, when she backed to the table. The waitress started to stop but dumped the coffee forward upon plaintiff. Plaintiff's dress was soaked and her arm burned and her leg also burned but to a less degree. After the collision plaintiff immediately went to the restroom where salve was applied to the burn and thence to the home of Mr. Lorenz and the next day, Sunday, returned to her home in Omaha.
Mrs. Barkley's version of the accident is that she had been at the coffee table in the northeast corner of the room and was carrying the coffee and was walking west. That she saw Mrs. Trout standing on the north side of the table and that she herself was walking in about the center of the open space north of the table at which plaintiff's party was seated and that as she got to a point opposite the table Mrs. Trout whirled and bumped into her and that plaintiff did not look around before she turned.
Mrs. Robert Carson, witness for defendant, who was waiting in the hall immediately north of the archway and looking into the dining room, testified also that she saw plaintiff at the north side of the table facing south and that she suddenly turned to the right as the waitress came from the east and hit the waitress with her elbow. To the same effect was the testimony of Mrs. Howard Stolp, seated in one of the booths on the west side of the dining room, C. M. Reppert in a booth on the west side, and Joe and Doris Phillippson, also in one of the west booths, and Floyd C. and Mrs. Irene Taylor.
I. The testimony of plaintiff's witnesses is in most respects directly opposed to that of witnesses for defendant, plaintiff's evidence showing negligence on the part of defendant's employee while the testimony of witnesses for defendant is to the effect that the collision was the fault of plaintiff either in not observing or failing to pay any heed to the approach of the waitress. Thus there is a direct conflict in the testimony. Where there is such, under our many holdings the rule is so well established that authority need not be stated therefor, that the question becomes one for the jury to determine.
Defendant argues that under the most favorable evidence in this case plaintiff was guilty of contributory negligence. We do not so find. Under the evidence introduced by plaintiff it was shown that the waitress was within a very close distance at the time she was discovered by plaintiff.
Defendant argues that plaintiff voluntarily placed herself in a position of danger which could be seen and appreciated and is therefore guilty of contributory negligence as a matter of law. We do not agree with this theory. The evidence fails to show that until immediately before, and almost at the time the collision occurred, there was anything which would tend to warn or charge plaintiff with any impending danger. Or, if there was danger, nothing in the testimony shows that it was seen or appreciated. Defendant cites Snyder v. Heuer, 184 Iowa 538, 168 N.W. 878; Walker v. Roosevelt Hotel Company, 214 Iowa 1150, 241 N.W. 484; Aita v. John Beno Company, 206 Iowa 1361, 222 N.W. 386; and Boles v. Hotel Maytag, 218 Iowa 306, 253 N.W. 515. An examination of these cases will show that the facts in none of them have application to the facts here. These were cases of injury in which the evidence showed defendant was exercising no care for his own safety whatever and not maintaining a lookout.
There were but two courses open to plaintiff. One was to walk across the line on which the waitress was approaching and the other to move backwards. If, after seeing the waitress, she did not adopt the best and safest method of avoiding the collision she still would not necessarily be guilty of contributory negligence. Had she proceeded to the north and the collision occurred, she might be charged with negligence more readily than if she attempted to back away from what appeared to be immediate danger. Plaintiff's testimony shows that she did attempt to avoid the oncoming danger. The time between her first view of the waitress and the collision could only be measured in fractions of seconds and failure to pursue the right method of avoiding danger would not be chargeable to her. Plaintiff cites Estate of Kern, 141 Iowa 620, 118 N.W. 451, 455. The opinion in that case states See also Lundien, Administrator v. Ft. Dodge, D. M. & S. Railway Company, 166 Iowa 85, 147 N.W. 308; Short v. Powell, 228 Iowa 333, 391 N.W. 406; and Stafford v. Gowing, 236 Iowa 171, 18 N.W.2d...
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