Williams v. Cohn
| Decision Date | 19 January 1926 |
| Docket Number | 36782 |
| Parties | J. O. WILLIAMS, Administrator, Appellee, v. J. D. COHN, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 9, 1926.
Appeal from Black Hawk District Court.--H. B. BOIES, Judge.
ACTION by an administrator, to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant in the operation of a truck. At the close of all the evidence, the motion of defendant for a directed verdict was overruled. Verdict was returned in favor of plaintiff in the sum of $ 1,500. Motion for new trial was overruled, and judgment entered in conformity to the verdict. Defendant appeals.
Reversed.
McCoy & Beecher, for appellant.
Mears & Lovejoy, for appellee.
DE GRAFF, C. J.
Plaintiff as administrator of the estate of Francis Nicholson, recovered damages in the sum of $ 1,500 for the death of his intestate, alleged to have been caused by the negligence of an employee of defendant's in the operation of a delivery truck. Two specifications of negligence, which in legal effect constitute but one ground, were submitted to the jury, to wit: That the said employee, while acting within the scope of his employment with defendant in the operation of said truck, (1) failed to exercise reasonable and ordinary care to look and ascertain whether the decedent was in close proximity to said truck before starting the same, and (2) failed to exercise reasonable and ordinary care to look and ascertain whether any small children, and especially plaintiff's decedent, were loitering or lingering in the vicinity of said truck before starting the same, and was negligent in failing to look before getting aboard said truck, before starting same.
The primary and controlling propositions relied upon by appellant in interrogative form are: Is the evidence sufficient to sustain the verdict? Did the trial court err in failing to submit to the jury, upon request, the defendant's theory of the case?
Some degree of negligence in cases of this character must be established, as the foundation of legal responsibility. Borland v. Lenz, 196 Iowa 1148, 194 N.W. 215. Negligence is predicated on duty, and presupposes the omission to fulfill the obligation imposed. This duty is imposed either by statute or by rule of common law. It may be owed to an individual or to the public generally; but he who seeks damage for an injury sustained must predicate and prove that the damage arose without fault on his part, through the omission of a person charged with a duty. Fisher v. Ellston, 174 Iowa 364, 156 N.W. 422.
Three essential elements are involved in every case of actionable negligence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; (3) an injury proximately resulting to the plaintiff from such failure.
Upp v. Darner, 150 Iowa 403, 130 N.W. 409.
With these legal propositions in mind, we ask, What facts were established when the plaintiff rested? Briefly summarized, the record discloses that, on Saturday afternoon, September 16, 1922, about 5:15, in broad daylight, a delivery truck driven by an employee of the defendant's entered the driveway of the A. E. Nicholson premises in Waterloo, Iowa, for the purpose of delivering groceries which had been ordered by Mrs. Nicholson; that at said time Mrs. Nicholson, with three of her children, respectively six, four, and one and a half years of age (the youngest being Francis, the decedent), was sitting on the front porch of their home; that she saw the truck enter the driveway, and knew its purpose; that she left the children, and went to the kitchen, to receive and check the groceries which were carried from the truck by the driver and his helper; that this delivery required about two minutes; that the truck came south on Rhey Street, and turned east into the Nicholson drive and stopped, with the rear end of the truck about even with the east end of the kitchen window, which window is 4 feet 8 inches from the northeast corner of the house; that the house faces west; that, while she was still in the kitchen, she heard someone scream, and, upon going to the door, saw the youngest child, Francis, lying about one foot behind the right front wheel of the truck; that the driver picked up the baby and handed it to her; that the doctor was immediately called, and that the child died about three hours after the injury; that she did not see the truck start forward, but she estimated that it moved between 12 and 14 feet before it stopped; that the truck was 14 feet and 2 inches long.
Upon cross-examination, she testified, with respect to the forward movement of the truck:
The father of the child, who was called as a witness, was not present when the accident happened; but when he arrived home, the truck was still standing where it had stopped almost immediately when the child was injured. He testified that at that time the front wheel was within about 3 feet of the corner of the garden, which was about 27 feet from the northeast corner of the house.
This is the sum and substance of all testimony offered by the plaintiff to sustain the specifications of negligence in this case. There is not a line as to the conduct of the driver in the operation of the truck at the time and place in question. There is no fact or circumstance shown by plaintiff which would tend to establish the absence of reasonable and ordinary care on the part of the driver, or the violation of any duty imposed by law on him in the operation of the truck, or that the injury was proximately caused by the negligence of the defendant. It is elementary that the plaintiff had the burden to establish the negligence alleged in his petition.
It appears, however, that the defendant did not move for a directed verdict upon the conclusion of plaintiff's evidence, but proceeded with his evidence.
Defendant pleads nonliability; and it is his theory, under all the evidence, that, immediately prior to the accident, plaintiff's intestate was hidden in front of or underneath the truck, and that by reason thereof no duty was imposed by law on the driver to make inspection or investigation to ascertain if the child was in or about the truck, in the absence of actual notice that the child was in close proximity thereto. If the evidence sustains this contention without conflict, the judgment entered must be reversed.
A driver of a truck is under no legal obligation to make a search around and under his car "lest a child too young for discretion and undirected by parents has tucked herself away in an obscure place beyond the casual and convenient notice of the driver." Ostrander v. Armour & Co., 176 A.D. 152 (161 N.Y.S. 961). See, also, Bruhn v. Fort Dodge St. R. Co., 195 Iowa 454; Thyssen v. Davenport Ice & Cold Storage Co., 134 Iowa 749, 112 N.W. 177; Ziehm v. Vale, 98 Ohio St. 306 (120 N.E. 702); Routt v. Look, 180 Wis. 1 (191 N.W. 557). We therefore inquire if the facts sustain defendant's theory.
In the last analysis, the material question is: What omission or commission occurred on the part of the driver that constitutes negligence, within the purview of the petition? It is also material to inquire, Where was the child at...
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