Webber v. E. K. Larimer Hardware Co.

• Decision Date: 28 July 1944
• Docket Number: 46527.
• Citation: 15 N.W.2d 286,234 Iowa 1381
• Parties: WEBBER v. E. K. LARIMER HARDWARE CO.
• Court: Iowa Supreme Court

15 N.W.2d 286

234 Iowa 1381

WEBBER v. E. K. LARIMER HARDWARE CO.

No. 46527.

Supreme Court of Iowa

July 28, 1944

John D. Randall, of Cedar Rapids, for appellant.

Donnelly Lynch, Anderson & Lynch, of Cedar Rapids, for appellee.

GARFIELD Justice.

The principal question is the sufficiency of the evidence to take to the jury the issue of defendant's negligence. We will view the evidence in the light most favorable to plaintiff.

Defendant operates a hardware store in Cedar Rapids. Plaintiff, a trucker for a nearby farmers' elevator, presented at defendant's store a written order from his employer for two sheets of galvanized steel, 3 by 8 feet. Defendant's clerk sent plaintiff to its warehouse, in charge of Gable the only employee there. Gable directed plaintiff into the warehouse with him to see if they could find sheets of that size. They finally found a pile containing some sheets of the desired size. The sheets were leaning against two upright two-by-fours nailed together. One of the 8-foot edges of each sheet rested on the floor. The top of each sheet was closer to her supporting uprights than the bottom. The pile contained some 20 to 25 sheets of different widths, 'all mixed up all the way through.' Most of the narrower widths were further from the upright than the 3-foot widths. It thus became necessary to remove from the pile two sheets of the desired width. Gable asked plaintiff to help him do this.

As directed by Gable, plaintiff stood about two feet south of the north end of the pile. Gable went to the south end of the pile and with an iron stick about two feet long pried or pulled several sheets against plaintiff's left leg. As directed plaintiff was attempting to hold the sheets in a vertical position with his leg and hands. Suddenly the pile fell on his left leg and broke it. Each sheet was 1/16 inch thick and weighed 53 pounds. The sheets that fell on plaintiff weighed 1000 pounds or more. Before his injury plaintiff was without experience in handling sheet steel. He was not warned of any danger. Gable had been in charge of the warehouse some five years.

Plaintiff testified: 'he (Gable) got more than 2 or 3 sheets at a time, and I think I had around 8 or 10 sheets there, and all at once the whole pile came over and that is all I can tell. * * * I wasn't pulling any sheets, I was holding the edge of the sheets attempting to steady them and keep them from falling over and it is my recollection that at the time the sheets became unbalanced and due to their weight I couldn't hold them. * * * Mr. Gable was doing the pulling, I wasn't. * * * I continued to hold the sheets in the perpendicular position by having them against my leg until those other sheets whipped and the pile came down.'

Plaintiff's petition is in two counts. The first is based on the theory of res ipsa loquitur. The second count contains 10 charges of negligence. It seems not to be seriously contended that res ipsa loquitur is applicable here. We therefore disregard the first count. One of the charges in the second count is that defendant was negligent in allowing the galvanized sheets to fall and break plaintiff's leg. Defendant made no attack of any kind upon this allegation. See Gookin v. Guy W. Baker & Son, 224 Iowa 967, 969, 970, 276 N.W. 418, and citations; Watson v. Des Moines Ry. Co., 217 Iowa 1194, 1197-1199, 251 N.W. 31, and citations; Pixler v. Clemens, 195 Iowa 529, 533, 191 N.W. 375. Defendant's answer is in effect a general denial. It contains no plea of assumption of risk.

I. We think the issue of defendant's negligence should have been submitted to the jury. There is little doubt that plaintiff was an invitee in defendant's warehouse. McMullen v. M. & M. Hotel Co., 227 Iowa 1061, 290 N.W. 3, and citations; Riggs v. Pan-American Co., 225 Iowa 1051, 1055, 283 N.W. 250; Annotation 33 A.L.R. 181, 229; 4 Shearman & Redfield on Negligence, Rev. Ed., page 1790, section 780; 38 Am.Jur. 791, section 131. Defendant was therefore bound to exercise toward plaintiff ordinary care not to expose him to unreasonable risk. LaSell v. Tri-States Theatre Corp., Iowa, 11 N.W.2d 36, 45, and citations; 38 Am.Jur. 754, section 96; Annotation 100 A.L.R. 710, 711. The liability of an owner or occupant of premises to an invitee is predicated upon his superior knowledge of the danger to which the invitee is subjected and of which the latter is unaware. 38 Am.Jur. 757, section 97.

From the evidence received and that offered which should have been received (see Divisions III and V hereof), the jury could have found that: plaintiff was injured as a result of Gable's act in prying the steel sheets against plaintiff's leg; plaintiff was doing merely what Gable had directed him to do; Gable knew or should have known the qualities of sheet steel of this kind and plaintiff did not, e.g., its flexibility and tendency to 'whip' when moved in a vertical position; Gable knew or should have anticipated the danger of attempting to remove sheets in this manner from this pile and plaintiff did not; this method of piling and removing sheets was not usual, customary or safe; the pile of sheets fell on plaintiff at least in part because Gable negligently pried more than two or three sheets at one time against plaintiff's leg.

The facts of each particular case of this kind are controlling upon the question of negligence. 38 Am.Jur. 763, section 102. However, the following tend to support our conclusion: Fishburn v. Ry. Co., 127 Iowa 483, 103 N.W. 481; Faulkinbury v. Shaw, 183 Ark. 1019, 39 S.W.2d 708; Belcher v. John M. Smyth Co., 243 Ill.App. 65; Daugherty v. Spuck Iron & F. Co., Mo.App., 175 S.W.2d 45; Garfinkel v. B. Nugent & Bro. D. G. Co., Mo.App., 25 S.W.2d 122; Higgins v. Ruppert, 124 A.D. 530, 108 N.Y.S. 919; Champlin Hdwe. Co. v. Clevinger, 158 Okl. 10, 12 P.2d 683.

II. While the grounds most relied upon in support of defendant's motion to direct challenge the proof of its negligence, one ground of the motion is that 'the evidence affirmatively shows contributory negligence of plaintiff.' Defendant argues that if there was danger to plaintiff from what was done, it was apparent to plaintiff. We think, however, here as ordinarily the question of contributory negligence was for the jury. As stated, the evidence is that plaintiff had had no previous experience in handling sheet steel. We are not justified in concluding that he necessarily knew or should have known any danger incident to this method of removing the sheets. He was not required to anticipate any negligence on the part of defendant. Tending to support our conclusion are Riggs v. Pan-American Co., 225 Iowa 1051, 283 N.W. 250; Crawford v. Emerson Constr. Co., 222 Iowa 378, 385, 269 N.W. 334; Nelson v. F. W. Woolworth & Co., 211 Iowa 592, 231 N.W. 665; 38 Am.Jur. 1063, 1067, sections 356, 358.

III. Some other errors are assigned. Plaintiff offered to prove by Bruzek, for 16 years proprietor of the Cedar Rapids Sheet Metal Co. who for 35 years had handled steel sheets of this kind, that: the usual, customary and safe method of piling such sheets in Cedar Rapids at that time was flat on the floor or in racks, according to size; that it was not safe to pile sheets of different widths with the tops resting against posts; it was not safe for one man to handle sheets of this kind; such sheets are flexible, slippery, inclined to slide, and are hard to handle; where they are handled from one end they are inclined to bend or whip at the other end and throw the weight of the entire pile against such other end.

Plaintiff testified that while he had had no experience with sheet steel before he was injured, later for over a year he had handled about three truck loads a day of the same kind of material. He offered to testify that: at the time of trial he was familiar with the usual, customery and safe method of piling steel sheets at the time he was injured in Cedar Rapids; that method was to pile the sheets flat on the floor or in shelves in separate piles according to dimensions; it takes two men to handle a sheet of steel 3 by 8 feet.

All this offered testimony of Bruzek and plaintiff was excluded. The only objection to the offered testimony of plaintiff was that of incompetent, irrelevant and immaterial and that the piling of the sheets had no proximate relation to their falling. The objection did not challenge the competency or qualifications of the witness and the ruling was not placed on that ground.

We think the above offered proof should have been received. It is well settled, subject to certain exceptions not applicable here, that while it is not a conclusive test, evidence of what is usual and customary is generally admissible on the question of negligence. LaSell v. Tri-States Theatre Corp., Iowa, 11 N.W.2d 36, 44, and citations; Johnson v. Plymouth, etc., Co., 174 Iowa 498, 503, 156 N.W. 721; Donnelly v. Cement Corp., 168 Iowa 393, 399, 148 N.W. 982; Annotation 137 A.L.R. 611; 1 Shearman and Redfield on Negligence, Rev.Ed., page 18, section 10; 2 Jones Coms. on Evidence, 2d Ed., page 1276, section 685; 38 Am.Jur. 1015, section 317. That the offered proof, insofar as it sought to show what was safe, did not 'invade the province of the jury,' see Grismore v. Consolidated Products Co., 232 Iowa 328, 344, 5 N.W.2d 646, 655, and citations; 28 Iowa Law Rev. 549, 552.

IV. Defendant seeks to justify the trial court's exclusion of much of the above offered proof on the theory that there is no causal connection between the manner in which the sheets were piled and plaintiff's injury, which is said to have been caused by the attempt to remove the sheets from the pile. The argument is that Gable's attempt to remove the sheets from the pile was an intervening act which breaks the chain of causation...