Young v. Marlas

• Decision Date: 05 February 1952
• Docket Number: No. 47945,47945
• Citation: 243 Iowa 367,51 N.W.2d 443
• Parties: YOUNG v. MARLAS et al.
• Court: Iowa Supreme Court

Page 443

51 N.W.2d 443

243 Iowa 367

YOUNG v. MARLAS et al.

No. 47945.

Supreme Court of Iowa.

Feb. 5, 1952.

Messer, Hamilton, Cahill & Bartley, of Iowa City, for defendants-appellants.

Borchart & Borchart and D. C. Nolan, of Iowa City, for plaintiff-appellee.

Messer, Hamilton, Cahill & Bartley, of Iowa City, for defendants-appellees.

MULRONEY, Justice.

On May 5, 1950, Leona Young, a nineteen year old elevator operator in Iowa City, was walking on the sidewalk in front of Lubin's Drug Store. She was cut and injured when the transom glass above the display window fell and shattered on the sidewalk beside her. In her suit against the owners and lessees of the drug store building she relied upon the doctrine of res ipsa loquitur. The defendants denied that they were guilty of any negligence in the construction, installation or maintenance of the transom glass, and denied negligence on their part which caused plaintiff's injuries and alleged any injuries plaintiff received were the result of 'atmospheric conditions' (interpreted by the court to mean an act of God) then and there existing over which defendants had no control. The answers also alleged plaintiff was guilty of contributory negligence and 'the doctrine of res ipsa loquitur or general negligence has no application to this case.' The jury returned a verdict for plaintiff against the lessees only, in the sum of $8,687.15, and the latter appeal with this statement of four errors: '(1), that the court erred in overruling defendants' motion for directed verdict made at the close of plaintiff's evidence and renewed with additional grounds at the close of all of the evidence; (2) that the court erred in overruling the appellants' motion for judgment notwithstanding the verdict, which motion is based on the refusal of the court to direct a verdict on all the grounds stated in those motions; (3) that the court erred in overruling defendants' exceptions to the instructions to the jury and particularly Instruction No. 11, pertaining to the application of res ipsa loquitur; (4) that the court erred in overruling appellants' motion for new trial generally, and particularly ground ten thereof, for the reason that the verdict of the jury was so excessive that it could only be the result of passion and prejudice.' Rule 344, R.C.P., 58 I.C.A., requires that the 'errors * * * shall be separately stated and numbered'. Such general assignments as defendants make do not comply with the rule. They do not necessitate our review of all of the grounds of the motions or all of the instructions to the jury. Price v. McNeill, 237 Iowa 1120, 24 N.W.2d 464.

I. The status of the case at the close of plaintiff's evidence was what might be called the typical case for the application of the doctrine of res ipsa loquitur. Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 P. 599. Leona Young testified she was the elevator girl at Aldens Retail Store, about a half a block from Lubin's Drug Store. She said she left Alden's about 3 o'clock with James Miller intending to spend her ten minute rest period drinking coffee at Lubin's. She said there was a wind blowing but she had no difficulty in walking and there were other people on the streets. When they arrived in front of Lubin's she heard a loud crack and she and Miller ran toward the street. She said the glass fell out of the Lubin store, hit the sidewalk and flew up and cut both of her legs. The rest of her testimony consists of the extent of her injury about which more will be said later.

James Miller, also an employee of Aldens, described the trip to Lubin's with Leona. He heard the crack of glass as they arrived in front of Lubin's, saw the glass coming down, and heard it shatter on the sidewalk. He saw the cuts and gashes on Leona's legs and he carried her first into the drug store and then across the street to a doctor's office. He said 'there was a wind blowing that afternoon but there was no definite difficulty in walking. We could keep our feet well enough. There was not a large wind enough to blow a person off their feet. We had no difficulty except to hold our coats shut. We did not have to fight the wind or work our way into it.' He said he passed Lubin's every day after he started work at Aldens in September, 1949 and he had a 'vivid impression' that he had seen a corner broken out of one window and a red rag stuffed in the hole. Plaintiff's other evidence tended to establish defendants' control over the building from which the glass fell, the sufficiency of which is not questioned on this appeal.

II. Res ipsa loquitur is a name for legal principle which permits an inference of defendants' negligence upon proof that establishes (1) defendants' exclusive control and management of the instrumentalities causing the injury, and (2) the occurrence was such as in the ordinary course of events would not have happened without negligence on the part of defendants. Eaves et al. v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 11 A.L.R.2d 1164, and cases there cited. Defendants do not argue that plaintiff's evidence failed to establish the two basic facts upon which the doctrine of res ipsa loquitur is rendered applicable. They argue the first two assignments of error in one division. Quite often in this argument defendants assert the doctrine of res ipsa loquitur is not applicable to this case. But nowhere in the argument do defendants contend that the motion for directed verdict at the close of plaintiff's case should have been sustained on the ground plaintiff had failed to make out a prima facie case for the application of the doctrine of res ipsa loquitur. Defendants state in this single argument under the first two assignments 'that the time to tell whether or not a prima facie case is made which permits an inference (of defendants' negligence) is after all of the evidence is in, not at the close of plaintiff's evidence.' The time to determine whether a prima facie case is made is at the close of plaintiff's testimony. Such a prima facie case under the doctrine of res ipsa loquitur was clearly made in this case. Defendants are really contending their evidence rebuts the possible inference of their negligence as a matter of law. Perhaps there are cases where, after a prima facie case of permissible inference of negligence has been made out by plaintiff's testimony, a verdict can be directed because of the strength of defendants' explanatory testimony. No prior decision of this court reached such a conclusion. Larrabee v. Des Moines Tent & Awning Co., 189 Iowa 319, 178 N.W. 373 and Ruebel Bros. v. American Exp. Co., 190 Iowa 600, 180 N.W. 658, indicate the issue would always be for the jury after the prima facie case was established by plaintiff's testimony. In Larkin v. Chicago & G. W. Ry. Co., 118 Iowa 652, 92 N.W. 891, 893, where it was admitted plaintiff made out a prima facie case by proof of an accident and defendant contended its evidence affirmatively established its right to a directed verdict we held otherwise and observed: 'To say the least, it should require a peculiarly strong and conclusive array of proof to justify the court in withdrawing such an issue from the jury.'

III. Defendants' evidence consisted of the manner of installation of the glass panels, their general observation of the condition of the panels up to the time they fell out, and the velocity of the wind on the day of the accident.

The contractor who installed the store front about 17 years before the accident described the manner in which the three transom glass panels were installed. These panels were about one-fourth inch thick and about 3 feet high and 75 inches long and they were set in wooden sills just below the I beam supporting the brickwork and just above the large display window. It is enough to say he testified the glass panels were set on wood blocks with a piece of leather attached to allow for expansion and metal clips at intervals of ten inches. In general he said the installation is the same method of installation that is used and approved today. The contractor who boarded up the opening after the panels fell out on May 5th testified as to their difficulty in working during the high wind. He said the sashes and sills were all in place and the only thing out of place was the moulding at one end which was hanging down. Both contractors said this moulding around the edge of the glass has nothing to do with holding the glass in place.

The testimony of Morris Lubin was that at no time was there a crack or hole in any of the glass panels and at no time was there a rag stuffed in any hole in the glass. The store proprietors testified the glass panels were often cleaned and washed by school boy employees. These boys did not at any time report the glass was cracked or damaged.

The government weather observer at the Iowa City airport who had been measuring wind velocity there since 1941 testified for defendants. He said he measured the wind velocity by the instrument located on top of the United Airlines hangar at the Iowa City Municipal Airport about a mile and a half from the drug store. He gave the wind velocity on May 5, 1950 for every half hour reading from 10:28 A.M. to 5:30 P.M. This showed a south wind of 34 m.p.h. velocity at 10:28 A.M., gradually shifting to the southwest and rising to 75 m.p.h. at 1:30 P.M., then back to 70 m.p.h. at 2:30 P.M., then 78 m.p.h. velocity or the high at 3 P.M., then dropping to 63 m.p.h. at 3:30 P.M., and finally to 62 m.p.h. at 5:30 P.M., with one reading at 4:30 P.M. of 74 m.p.h. He guessed there might be a differential of twenty percent between the readings at the airport and the corner at Lubin's drug store because of frictional differences and obstructions. He remembered the wind of April 11, 1945 which blew the airport hangar down. He was on duty at that time and he said the velocity of that wind, which was of short duration, was 75 m.p.h.--evidently the previous high...