Tucker v. Tolerton & Warfield Co., 49274

CourtUnited States State Supreme Court of Iowa
Citation86 N.W.2d 822,249 Iowa 405
Docket NumberNo. 49274,49274
PartiesEldon TUCKER, Appellee, v. TOLERTON & WARFIELD CO., a Corporation, Appellant.
Decision Date17 December 1957

Deck & Mahr, Sioux City, for appellant.

Gill & Dunkle, Sioux City, for appellee.

GARFIELD, Justice.

This is a law action to recover for personal injury from a fall in a grocery store operated by defendant Tolerton & Warfield Co. in Sioux City. Owners of the store building were also joined as defendants but were held not liable by judgment on directed verdict. Since this ruling is not challenged we treat Tolerton & Warfield Co. as sole defendant.

Plaintiff, age 26, was a route salesman of soft drinks for Sioux City Bottling Works. January 27, 1956, he drove his truck loaded with bottled beverages to the rear of defendant's store. A garbage truck was at the rear door. Plaintiff entered the store and went to the front part to check and rearrange the supply of pop and clean and dust the shelves on which it was displayed. After 15 to 20 minutes he returned to his truck by the same path he took in entering the store. The garbage truck was then gone. Plaintiff selected from his truck enough quart bottles of beverages to replenish the store's supply. Four cases of bottles were needed. These were loaded on a two-wheel iron cart with handles extending from the wheels about shoulder high. This took five to ten minutes. The cart and load weighed some 250 pounds.

Plaintiff then started toward the rear door, set his loaded cart down, opened the door, went back to his cart and pushed it down the ramp leading from the door to the floor of the building. When almost to the bottom of the ramp his feet went out from under him, he fell on his buttocks and the loaded cart fell on top of him. The ramp was of concrete, 6 feet, 9 inches wide, and 6 feet, 3 inches long, with a descent of 21 inches (26 2/3 per cent) from the threshold of the door to the floor.

There were three lettuce leaves each, as we understand the record, about as large as plaintiff's hand, and some paper on the ramp almost to the bottom of it. There was also a patch of ice or packed snow about 6 inches square on the ramp. Plaintiff fell when he stepped on one of the lettuce leaves.

The trial court submitted to the jury only one charge of negligence against defendant--in allowing the lettuce leaves to be or remain on the ramp.

I. The contention most strongly urged is that plaintiff's contributory negligence appeared as a matter of law. In considering this claim of course the testimony must be viewed in the light most favorable to plaintiff. Mongar v. Barnard, 248 Iowa ----, 82 N.W.2d 765, 768, and citation. When this is done it is fairly clear the issue of plaintiff's freedom from contributory negligence was one of fact for the jury, not of law for the court.

Plaintiff had been in defendant's store only four or five times before the day he fell. It was not on his regular route which was in Nebraska. On one earlier occasion plaintiff had seen litter and trash in boxes and some of it on the ramp but the garbageman had not been there that day. At these previous times plaintiff descended the ramp safely with his load. When he entered the store on January 27 two garbagemen and two of defendant's employees were removing garbage from the rear of the store to the truck backed up to the rear door. One garbageman was in the truck. The other, standing on the ramp, was taking boxes of garbage from defendant's employees. When plaintiff finished checking the store's supply of pop and walked up the ramp the rear door was closed. As a witness he insists there was no light burning and it was dark there.

It is not surprising plaintiff did not see the lettuce near the bottom of the ramp when he first entered the store. It may not have been there then. A garbageman testified each day 300 to 500 boxes were usually removed from the store, open drums of garbage were dumped into the truck and about 100 trips were made to it. There is evidence an employee of defendant was trimming lettuce near the ramp on the day in question. Nor is it strange plaintiff did not see the lettuce as he left the store to go to his truck if, as he insists, the door was closed and it was dark when he ascended the ramp. Plaintiff says he looked before starting down the ramp with his cart but could see nothing on it because his cart was in front of him and it was dark down inside. He was wearing rubbers.

From plaintiff's cross-examination by the store owners this appears: 'The thing on my mind as I opened the door and started down the ramp was to go ahead and deliver my pop and be careful. * * * Yes, I was watching my step. I was looking where I was going. * * *

'Q. On the morning in question you had reason to believe you could proceed down it (ramp) without difficulty? A. Yes. * * *

'Q. You thought by being careful you could go down? A. Yes * * *.'

Plaintiff's testimony also indicates he was unable to see well upon entering the dark building from outdoors. It was only when his eyes became accustomed to the darkness after his fall that he could see the lettuce, paper and ice or snow upon the ramp.

Defendant argues plaintiff was negligent in not seeing the lettuce or anticipating its presence and not looking more carefully before descending the ramp. It is said that if it was dark inside he should have 'stood there a second or two so he could view the ramp.' Of course this is proper argument for a jury but it does not persuade us plaintiff's contributory negligence appeared as a matter of law.

As defendant concedes the issue of freedom from contributory negligence is of course ordinarily one of fact for the jury. As defendant also admits the issue becomes one of law for the court only in the exceptional case where plaintiff's want of reasonable care is so manifest and flagrant as to convince all fair minds plaintiff did not exercise the caution for his own safety which marks the conduct of ordinarily prudent men. It is ordinary care, not the highest degree of care, that is required. See Toney v. Interstate Power Co., 180 Iowa 1362, 1378, 163 N.W. 394, 400; Leinen v. Boettger, 241 Iowa 910, 926, 44 N.W.2d 73, 82, and citations; Aitchison v. Reter, 245 Iowa 1005, 1009, 64 N.W.2d 923, 925; Miller v. Griffith, 246 Iowa 476, 479, 66 N.W.2d 505, 507; Mueller v. Roben, 248 Iowa ----, 82 N.W.2d 98, 100, and citations.

'We have held many times that if there is any evidence tending to establish plaintiff's freedom from contributory negligence that issue is for the jury. (Citations.)' Weilbrenner v. Owens, 246 Iowa 580, 582, 68 N.W.2d 293, 294. Certainly there is substantial testimony here tending to show plaintiff acted with ordinary care.

On this issue plaintiff's case is fully as strong as McGrean v. Bos Freight Lines, 240 Iowa 318, 323, 36 N.W.2d 374, 377, where plaintiff was injured while delivering merchandise to a warehouse when an ice pick, which had been stuck in the wall about five feet above the floor to hold union notices, struck his eye. On the day he was injured McGrean had passed the ice pick 22 times. After referring to this fact the opinion uses this language applicable here:

'But this, in face of his denial of having seen it, merely created a jury question. The court could not say as a matter of law that he must have seen the pick or, in the exercise of reasonable care, should have seen it. The light was dim. Plaintiff entered each time from the sunlight into the shadow, pushing a wheelbarrow along a narrow two foot aisle or corridor. It was not for the court to say he must have seen the danger or was, as a reasonably prudent man, under any duty to have seen it. The fact that others had on other occasions and perhaps under different circumstances seen the ice pick was merely a consideration to be argued to the jury. It could not be held to convert the issue of contributory negligence into a law question.'

On the issue of freedom from contributory negligence it is proper to consider the fact that plaintiff, as an invitee upon defendant's premises, had a right to assume, unless he knew or should have known otherwise, that reasonable precautions had been taken for his safety. He was not required to anticipate negligence on defendant's part. See Gardner v. Waterloo Cream Separator Co., 134 Iowa 6, 10-11, 111 N.W. 316, 318; Nelson v. F. W. Woolworth & Co., 211 Iowa 592, 604-605, 231 N.W. 665; Riggs v. Pan-American Wall Paper & Paint Co., 225 Iowa 1051, 1057, 283 N.W. 250. See also Webber v. E. K. Larimer Hdwe. Co., 234 Iowa 1381, 1384-1385, 15 N.W.2d 286, 288; Stupka v. Scheidel, 244 Iowa 442, 449-450, 56 N.W.2d 874, 878.

The precedents just cited together with Hull v. Bishop-Stoddard Cafeteria, 238 Iowa 650, 685-689, 26 N.W.2d 429, 449-451, lend support to our holding in this division. See also language in Atherton v. Hoenig's Grocery, 248 Iowa ----, 86 N.W.2d 252.

II. There is no merit in defendant's complaint the question of plaintiff's permanent disability should not have been submitted to the jury since, it is said, it was too speculative.

There is clear evidence plaintiff's fall resulted in two ruptured spinal disks. On May 1 they were removed by surgery and a piece of bone was taken from plaintiff's pelvis and placed in the area from which the disks were taken. The operation took three to four hours. This case was tried the following October. Plaintiff's Dr. Krigsten testifies he has an opinion as to the permanent disability plaintiff will suffer from his injury and operation and fixes it at 20 per cent of his whole body, perhaps a little higher. He had performed about 600 or 700 operations of this type. On questioning by defendant's counsel this witness says he does not like to estimate the extent of disability in less than a year following such an operation.

At defendant's request Dr. Graham examined plaintiff September 20 evidently for the purpose of testifying. He says plaintiff is totally disabled from...

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