Wendling v. Community Gas Co.

• Decision Date: 12 March 1963
• Docket Number: No. 50877,50877
• Parties: Avon F. WENDLING, Appellant, v. COMMUNITY GAS COMPANY, Inc., Appellee.
• Court: Iowa Supreme Court

Page 401

120 N.W.2d 401

254 Iowa 1158

Avon F. WENDLING, Appellant, v. COMMUNITY GAS COMPANY, Inc., Appellee.

No. 50877.

Supreme Court of Iowa.

March 12, 1963.

Swanson, Swanson & Boeye, Red Oak, for appellant.

Jones, Cambridge & Carl, Atlantic, for appellee.

SNELL, Justice.

Plaintiff, an invitee, seeks recovery for injuries sustained on defendant's premises.

Defendant was the owner and operator of a gasoline service station. Plaintiff had been a customer for many years. She patronized the defendant's station on an average of fifty times a year. It was her custom to remain in her car while it was being serviced, but she had been in the station building and was familiar with the premises.

On the morning of March 28, 1958 plaintiff drove her automobile upon the apron in front of the defendant's station for the purpose of buying gasoline. On this occasion she got out of her automobile and went into the station to write a check for her purchases and for some extra cash. In coming out of the station building she tripped on a hollow rubber signal hose extending from the building and across the driveways. This hose was a part of the regularly installed equipment used to ring a bell inside the station when a car drove up to the gasoline pumps. Plaintiff was injured and now seeks recovery. She alleges negligence on the part of the defendant in failing to exercise reasonable or ordinary care in the maintenance of its premises and that defendant had or should have had notice of a potentially dangerous condition and failed to remedy the same.

At the close of plaintiff's evidence the court sustained a motion of the defendant and directed a verdict for the defendant.

As the problem involves the sufficiency of the evidence to generate a jury question, a review of the pertinent parts of the testimony for the plaintiff is necessary. We will review the testimony in the same order as it was offered below.

Plaintiff called as her first witness Mr. Means, manager and president of defendant company. He had been employed by the defendant company for over twenty-eight years. He was familiar with the type of hose used for the signaling device and had handled and installed them. The signal hose was fastened on the doorsill and at no other point, and except where fastened was movable. The hose came out of the doorway and out over a ledge or step in front of the door and then down and across the two driveways of the station. The ledge or step was about thirty inches wide and about six inches high.

The manager was not in the station at the time of plaintiff's accident, but was immediately called and arrived within a few minutes. Plaintiff was still sitting on the driveway where she had fallen. Together with another employee he helped plaintiff up and she steadied herself against the front door of her car. A doctor was called, who arrived promptly and plaintiff was taken to a hospital by ambulance.

Following plaintiff's departure the witness made observations of the front of the station, the step and hose trying to figure out what had happened. He saw nothing too drastic and nothing different about the hose than there had been for several years.

He testified that where the hose went over the edge of the step and down to the driveway there might have been a very minute gap 'possibly a pencil-width or something like that, a quarter of an inch.' Movement of the hose might change the position, but not up and down.

The hose, after leaving the fastening at the doorsill, was neither taut nor rigid. At one time there had been a bracket at the far edge of the ledge but there was none at the time of the accident.

The same, or a similar signaling device located in substantially the same place, had been used at the station for at least sixyears, and was the same type as was in common use in approximately 90% of the stations in the area.

The accident happened on a bright day and it was dry with no ice or snow.

In driving into the station from either direction there is a clear view of the driveway, the ledge and step.

The witness testified as to his experience in the installing of signaling devices and their use in other stations. In his opinion, based on the customary method of installation, the hose should be fastened at no more than one point. One of several reasons was that if fastened tight there would be a greater tendency for a pedestrian to trip on it. 'If it weren't fastened, the hose would give and you would just go right along.'

The witness testified that during the period the signaling device had been installed in the station, to his knowledge no one had ever tripped or fallen over the hose.

The witness reiterated on redirect examination that if the hose was bracketed down and fixed it would be easier to trip over.

In what was apparently a momentary change in theory plaintiff attempted to inject the idea that the rear wheels of plaintiff's car were standing on the hose, thus causing it to be held in a fixed position, and causing the hose to act 'like a snare.' This theory, however, lacked evidentiary support.

The hose was completely movable from the sill of the doorway out to the island between the two driveways. Cars moving over the hose could move it if they suddenly applied their brakes. Employees could kick it and move it, and it was moved constantly when sweeping the driveway.

For the purpose of illustrating the testimony of the witnesses, a model or mock-up of the doorway, step and hose was used at the trial. The witness while on his knees measured and found that the hose at one point was 7/8ths of an inch above the ledge or step.

John Wright, a longtime employee of defendant, who serviced plaintiff's car, was called as a witness. He testified that it was plaintiff's custom to remain in her car and not enter the station building. Plaintiff usually charged her gasoline. On the morning in question plaintiff got out of her car and with the witness went into the station and wrote a check. He did not see plaintiff fall.

The witness testified that the hose was free as it laid across the ledge. At one time it had been bracketed down at the bottom, but he did not remember when, how or why the bracket was removed. He had made no observations during the time he worked at the station concerning any gap or rise of the hose. 'Kids walking by or on bicycles could have pulled the hose or kicked it around.'

He testified that the hose was in plain sight with nothing covering it. It ran out across the two drives and could be seen from either drive. The hose could be seen as you came out of the station door and had been there at least five years.

The witness was notified of the plaintiff's fall by a young boy. The plaintiff was in a sitting position about a foot off the ledge and about four feet from the station door. Her back was to the station.

Dr. York was called to the station to attend plaintiff and arrived promptly. He found plaintiff leaning on the door of her car next to the station door. He testified that plaintiff remarked that she tripped over the cord. Describing the cord or hose as he saw it, he said: 'It was flipped up a little bit. Evidently she had kicked it over. When I observed it the hose was elevated above the step. There was approximately a one inch gap between the top of the step and the bottom of the hose.' The blance of the doctor's testimony related to the plaintiff's injuries.

Plaintiff testified that she and her husband had been customers of the defendant for a long period of time prior to the accident. On the morning in question she drove into the station about 8:15 A. M. The condition of the road and driveway was good. She was wearing high heels 'like all women wear.' She said, 'I out of my car on the side next to the pumps, walked around back of my car and into the station. I paid for my gas and gave a check for more than the purchase as I needed some cash to take to Omaha. * * * As I left the station and went out across the step I caught my heel in the loop of the hose that was loose and I fell. * * * I caught my heel and tripped and full right in front of the step or ledge, sitting up. My hands were on the sidewalk. * * * When Mr. Means arrived the wanted to know what happened and I told him I tripped over the hose. The doctor was called. Mr. Means and Mr. Wright took me under the armpits, lifted me and walked me to the right hand door of the car. This was just a few steps southwest of the station door. They had opened the car door. I hung on the door in as straight a position as I could stand. The doctor arrived in a few minutes.

'While I waited for the doctor I looked at the hose over which I had tripped and observed the hose was looped up out at the edge of the ledge. The hose was bracketed on the east side of the door jamb.'

'I entered the station by going to the rear of my car and more or less paralleled the hose. At no time was I further away from the hose than I was where I fell to be able to look at it. I was too close to it to see light under it until after I fell.

'I don't remember which heel I caught, but believe it was the left one. * * *

'As a normal procedure when I bought gas at the station, I would drive in and stay in my car while it was serviced. I had been in the station before this morning, but it had been years ago.'

From her cross-examination we quote:

'I would average driving in the station once each week or ten days. Fifty times a year would be approximately correct and that had been continuous over all those years. * * * Things on the driveway were visible. I had seen the cord on several occasions and knew it was there to ring the bell. I remember the bell ring once that morning and I assume it was when my front wheels crossed the hose. * * *

'I followed Mr. Wright into the station and walked around the back of my car. The rear of the car was east of the hose. I had to cross the hose on the ledge going into the station, but I do not remember it...