*1 $96,421.04. ren given Anderson Because we Miguet, effect. In re Estate (Iowa 1971). conclude that these sums are to be consid- N.W.2d debts, paid ered as which were to be first III. Whether Proceeds of Sale of Real estate, personal property from the of the Estate or Rentals From Real Es- finding differences between the of the district May tate Be Considered as Person- finding appeals and the of the court of Property al From Which Debts concerning concerning the other debts and Must Be Paid. personal property value of the are of no significance. Finally, When the indebtedness argu encum- consider Randall’s considered, bering proceeds ment that the land is the total in- of the sale of Don debtedness ald’s real estate would exceed the value of and rental income from that personal remaining property by during pendency real estate more than of the estate bequest irrespective personal Randall’s should be considered to property whether the be findings from which appeals paid. of the court of debts must be those of We find no the district court are merit in this utilized for the contention. It was the other obvious personal debts and the value of the intent of property. Donald’s will that the real estate be payment district court was correct in sheltered from ordering of debts to the Randall extent personal reimburse the estate in there was sufficient $96,725. property amount of satisfy in his estate to those obli gations. To effectuate this intent with re Statutory II. Whether the Rules for gard to its consequences intended on the Abatement of Shares of Distributees beneficiaries, protection afforded the real Applied. Should be estate must proceeds also extend to the therefrom. We have considered all issues that, urges Randall if even the mort presented that, and conclude for the reasons gage purchase indebtedness and contract in stated, that we have the decision of the court debtedness on the land are considered as should be vacated. The paid personal debts to from property, his of the district court is affirmed. bequest propor abate before a tional abatement is made from the shares of DECISION COURT OF OF APPEALS residuary beneficiaries. He bases this VACATED; JUDGMENT OF DISTRICT 633.436, claim on Iowa Code section which COURT AFFIRMED. provides for abatement of devises to residu

ary property specifically beneficiaries before general

devised or bequest before charge specific property.

able on reject

We must proposed Randall’s appli-

cation of section present 633.436 case

because Donald’s will established a different will,

abatement scheme. Under the all debts are paid personal to be first property Becky Jean BANGS and Arlan without regard to the dispo- character of the Meloy Bangs, Appellees, sition of property under the will. Iowa Code provides: section 633.437 HILLS, LTD., Appellant. MAPLE provisions will,

When trust or other testamentary instrument of the dece- No. 97-1176. dent provide explicitly for an order of Supreme Court of Iowa. contrary abatement provisions 633.436, provisions section of the will Oct. or other testamentary instrument shall de- termine the order of abatement. statute,

Under provisions for abatement prescribed the testator has must be

Later, Becky and her husband Arlan filed petition against Maple Hills Ltd., Maple Apartments, the owner of Hills seeking injuries Becky’s recover for asserting a loss of consortium claim. In the *3 petition, plaintiffs alleged that defendant was negligent failing properly to maintain the grate and failing sidewalk and to warn invitee, Becky, as an danger created by the defective grate. sidewalk and Trial to a opening was held. After completed, statements were plain- but before began presentation evidence, tiffs of their any defendant moved to exclude by plaintiffs, showing offered that grate had been Becky’s welded after fall. Defen- dant contended that the consti- tuted evidence of a subsequent measure and were therefore barred under Wallace, Bettendorf, Iowa rule of evidence appellant. Ted J. for 407. The court sus- tained defendant’s motion and ruled that the Bauer, Schulte, Hahn, William Bauer of photographs were inadmissible. Brown, Burlington, appellees. Swanson & for trial, At grate witnesses described the as a

solid sheet of approximately steel one-fourth inch thick fifty and about inches across. The grate lies flush between two sections of McGIVERIN, side- Chief Justice. spans drainage walk and a gully. trench or raised, Although other issues are the main grate The itself three-quarter rests on a inch question here involves a ruling district court lip approximately three to four inches above that admitted evidence of a subsequent re- ground. purpose grate of the is to medial by measure taken defendant after allow water away to drain building. from the plaintiff Becky Bangs Jean fell on defen- trial, Becky At that testified when she property. dant’s stepped grate, slipped onto the tipped The court of concluded that causing forward her to fall. She further agree district court erred. We with the dis- although testified that it had snowed earlier trict ruling thus vacate the court of day, there was no snow on the sidewalk appeals decision and affirm the district court. when Becky she fell. also testified that she looking grate was not at the at the time she Background proceedings. I. facts and fell. She explained further that she was familiar with the sidewalk and location of the 25, 1994, February Becky On Bangs was grate, having grate approxi- walked over the visiting Maple apartment Hills complex, mately past twelve times a week for the two by Ltd., Maple owned Hills years. time, to During three she had Burlington perform home health care ser- experienced never problem grate with the vices for a client that lives in complex. tipping forward. Becky injured was slip- when she fell after ping on drainage a metal grate Snider, separating supervi- Richard the maintenance portions two of the According sidewalk. apartment sor at the complex, testified that Becky, grate tipped metal grate forward as she slipped approximately tilted it, stepped on causing her to fall to the four to six times in years the thirteen he had ground. Becky reported her fall to supervisor. Richard been maintenance He also testi- Snider, the supervisor Maple maintenance according at fied that knowledge, to his no one Apartments. Hills had ever fallen at grate the location of the supervisor. covered.” The court found that this during time as maintenance state- Ms jury, that he had cleaned the snow ment “tended to mislead the thus the He also stated morning Becky’s reopened fall Court allowed the from the record so sidewalk otherwise that the could that it grate that the was not tilted or see was feasible to attach the metal at that time. to the channel.” defective Lozano, apart- appealed, asserting manager Defendant that the dis- Linda (1) admitting trict court complex, that she heard that erred in: into evi- ment testified dence the showing that defen- another tenant had fallen on the fall; Becky’s dant had welded the past. (2) overruling its motion for a directed ver- plaintiffs’ evidence and of At the close (3) dict; failing instruct the evidence, for a all defendant moved directed jury concermng negligence. Upon law arguing plaintiffs failed to intro- verdict *4 transfer, our the court of concluded proving grate that the was duce evidence that the admitting district court erred in the any that defendant had actual or defective or photographs showing grate the welded and problem constructive notice of a with it. The therefore reversed and remanded the case court overruled the motion. Thereafter, for a granted new trial. During closing arguments, not wMeh were plaintiffs’ application for further review. reported, plaintiffs’ attorney commented to jury that the defendant could Admissibility II. of the grate prevent have the to it from welded under Iowa rule of evidence 407. tipping slipping. response plaintiffs’ or In to Defendant contends that the district court comments, attorney al- counsel’s defendant’s admitting photo- erred in into the evidence legedly argued jury welding to the that the graphs showing grate the had been welded at grate point, At this a “would not work.” plaintiff Becky’s a time after fall. Defendant hearing arguments recess was taken. After that the asserted admission of counsel, plaintiffs to from the court allowed violated Iowa rule of evidence evidentiary to allow them the record photographs showing to introduce A. of review. Standard grate had been welded at some time after We review the district court’s rul Becky’s fall. ing concerning admission of evidence for cor Thereafter, Becky concerning testified R.App. law. P. 4. rection of errors at Iowa grate photographs she took of the after her may predicated upon ruling a “Error' not be grate fall had been which showed a which admits or excludes evidence unless Following testimony welded. and ad- right party substantial is affect evidence, into mission ” 103(a). ed,.... R. Tucker Iowa Evid. Cf. again record was closed and counsel resumed Inc., Caterpillar, v. 564 414 N.W.2d closing arguments. 1997) (Iowa (although district court erred jury plaintiffs’ The returned verdict applying con rule 407 to exclude evidence favor, percent fault finding Becky one at decal, cerning warmng exclusion of evidence ninety-nine percent at fault. The plaintiffs rights not affect substantial did jury damages Becky to both awarded jury could conclude from other law because her husband and was entered fully admitted evidence that defendant was against defendant thereon. granted a negligent). A trial court is broad range concerning the admissibil of discretion Thereafter, a motion for defendant filed & ity Bingham of evidence. Marshall judgment notwithstanding the verdict and a Machinery, Huschart motion for new trial. The demed 1992). (Iowa ruling, motions. In its the court stated that pho- plaintiffs were allowed to introduce the Analysis. B. tographs showing grate the welded after de- Rule 407 of the Iowa rules of evidence “argued it was not feasible to attach fendant provides it as the metal to the channel over which follows: When, event, only measures, after an measures are tak- as ... which are which, if previously, en taken would have not admissible under rule 407. occur, likely made the event less to evi- During closing arguments, which were not subsequent dence of the measures is not reported, plaintiffs’ attorney allegedly com- prove negligence culpable admissible to or mented that defendant could 'and conduct in connection with the event. This should have prevent welded the require rule does exclusion evi- tipping slipping. response or of subsequent dence measures when of- comments, these attorney alleg- defendant’s a claim fered connection with based on edly argued welding to the liability in warranty strict tort or breach of grate “would not following work.” The dis- purpose, proving or for another such as cussion was then held presence outside the control, ownership, precau- jury: measures, controverted, tionary im- if plaintiffs]: MR. BAUER [for [C]ounsel peachment. argument in final [for defendant] tells this added.) (Emphasis public policy sup- jury the remedial action I suggested which porting the rule is “that the exclusion of such and that’s side necessary deterring evidence to avoid L-shaped metal that’s on—attached to improvements making individuals from or re- method, the concrete would be a not the Tucker, pairs an accident.” method, *5 solving but a method of the situa- (quoting N.W.2d at 412-13 Iowa R. Evid. out, grate tion of the being taken falling- (1983)). advisory committee’s comment out, tipping, turning, whatever. [Defen- purposes For addressing whether the dant’s] has ... jury [c]ounsel said to this properly district court photo- admitted the that that would not work. Now we all graphs showing grate, the welded we deem it know that it does work. all know We that necessary portions to refer to relevant of the it was done. We all know that it exists trial record. today, and I think extremely its unfair to The record shows that in its motion in that approach use in arguing this case. limine, argued photo- defendant that the Wallace, THE Attorney COURT: would graphs showing grate the welded were not you respond? like to response, admissible under rule 407. In MR. WALLACE [for Abso- defendant]: plaintiffs argued photographs that the were lutely. only brought up, reason I this prove admissible “not to negligence, but sim- Honor, Your is because Plaintiff in his ply picture to describe a of the area which closing argument suggests that we should injury the occurred.” The court sustained fasten it down or weld it down. If I do not defendant’s motion on pho- the basis that the respond have latitude to argument, to his tographs constituted subsequent evidence of certainly argue he’s free to neg- that we’re remedial measures and thus were not admis- ligent in doing so. I simply am re- sible under rule 407. The court stated: sponding position. to his THE might COURT: ... This be a differ- THE COURT: Defense counsel made the ent situation if puts the Defendant on the argument wishes, twice. If Plaintiff I’m that, saying defense ... Ladies and Gen- going to allow said Plaintiffs record to be jury, tlemen of the nothing there’s we reopened photo- and Plaintiff can allow the could have done grates to make those graphs to be into evidence. If that’s what they already more safe than were then and you do, want to we can do that. them, after the they accident welded which fairly simple measure,

is a discussion, if Following evidentiary this the approach, the Defendant takes then I reopened Becky record was was recalled Plaintiff, rebuttal, think the by plaintiffs. could show to the Becky proceeded stand that, well, fairly there simple thing was a testify photographs about that she took of that could have been grate done and that was April the and sidewalk in following her done, grates welded, these were but absent fall. These showed that the examples, those two the Court can grate see this had been welded so that it would no case, objected parties disput- In tip. again Defendant the have never longer slip or precluded Becky’s admis- ed the location of fall or the that rule 407 condi- on the basis Rather, photographs. grate into evidence of the tion of the or sidewalk. the sion distinguishing appeal factor in this involves record, Upon our review of the we con- feasibility controverted the remedial admit- clude that the district Thus, measure. we believe McIntosh has no photographs. ted the application to the facts of this case. plaintiffs’ neg with 1. In connection reopening We also believe the of the claim, plaintiffs’ attorney had the ligence evidentiary during argu- record here oral argue jury to the that defendant right ment to the was a matter of trial court prevent something have could done discretion with not inter- which especially slipping tipping, Valley fere. See Sun Iowa Lake Ass’n v. knowledge when defendant Anderson, (Iowa 621, 1996); housing past. grate had come out of its § see also 75 Am.Jur.2d Trial at 586 (1991). Second, by arguing authority we believe that to the As one has stated: welding “would not rigid No formula can or should fixed work,” concerning raised the issue employed to determine when motion grate. As a court, proper is since the trial result, showing the welded case, which has a feel for can best grate became admissible as evidence of sub- necessary appropri- determine what is prove “feasibility sequent measures to justice. ate to achieve substantial precautionary measures” under rule 407. § 75 Am.Jur.2d Trial at 583. words, other were admissi- Thus, a trial court in its discretion purposes showing ble for whether defen- reopening any stage allow of the case at by dant could have avoided the incident weld- trial, including argument has ing and whether it was feasible to *6 commenced, appears “necessary if it to the Annotation, Fleming, do so. See Thomas M. 390, § justice.” of Id. at due administration Admissibility Repairs, Evidence of ordinarily 587. Such a decision will not be Conditions, Change or Precautions Taken by reviewing interfered with a court. Id. Cases, Accident — Modern State 15 After 390, Jefferson, § at 586. See also State v. (1993) 119, (discussing 272 admis A.L.R.5th (Iowa 248, 1996), 545 N.W.2d 250 and State sibility subsequent of evidence of 1992) (Iowa Teeters, 346, v. 487 348 N.W.2d possibility measures to show (stating factors to in determin be considered avoiding injury). The district court believed reopened for ing whether a case should be jury that defense counsel’s statements to the evidence). additional jury. again to mislead the The court tended this, ruling post-trial Here, in stated belief its on the decision whether to motions. with the case was a matter of discretion position court which was in the best district Additionally, nothing we find we said in “necessary ap- to determine what was Inn, Steeplegate McIntosh v. Best Western justice.” 75 propriate to achieve substantial (Iowa 1996), any bearing 546 595 has N.W.2d 386, Specifically, § at Am.Jur.2d Trial In analysis on our under the record here. to be the district court allowed the record McIntosh, we held that the district court reopened photographs for introduction erred when it refused to admit counsel’s state- because felt defense deicing agent applied to showing a had been jury. find no abuse of ments misled We plaintiff slipped on a parking its lot after discretion here. patch at 597. of ice. Id. We concluded rec- summary, we conclude under this plaintiffs permitted have been to offer its court did not abuse deicing agent ap- that a had been ord that the district evidence by admitting into evidence plied changed as evidence of conditions be- discretion photographs showing that defendant welded plaintiffs fall and the time tween the time of Becky’s fall. were taken. Id. 268 ruling

III.The on the directed verdict that the sidewalk and were defective motion. and that knowledge thereof. Defendant also contends that the district We thus conclude that the district court overruling court in its erred motion for properly overruled defendant’s motion for a verdict motion for judgment directed directed verdict and judgment motion for notwithstanding the verdict based thereon. notwithstanding the verdict. considering judg a motion When for Jury IV. instructions. notwithstanding appeal, ment the verdict on Defendant also asserts that we view the evidence as the trial court did in district is, motion, ruling instructing jury. on erred light Defen- says party dant that one against most favorable to the whom the instruction involved a duplicative specification Faught Budlong, negligence motion was directed. (Iowa 1995) (citations requested that its three N.W.2d instructions should omitted). have given. been We determine the court’s jury adequately explained instructions 243(b) Iowa Rule of Civil Procedure applicable law. appears No error reversible (1996)provides: here. If the movant was entitled to have a verdict directed for him at the close of all Disposition. V. evidence, therefor, and moved and the We conclude that under this record the verdict, did not return such the court properly district court admitted grant then either a new trial or enter showing subsequent remedial measures tak- judgment though as it had directed a ver- by en plaintiff Becky defendant after Bangs’ dict for the movant. fall on defendant’s and sidewalk. We 243(b) purpose of rule is to afford the also conclude that the district court trial court an opportunity to correct its error overruled defendant’s motion for directed failing to sustain a motion for directed verdict and motion judgment for notwith- verdict where the movant was to a entitled standing Finally, the verdict. we find no directed verdict at the close of all evidence. error concerning given instructions Clinton, City Meeker v. jury. to the Accordingly, we vacate the deci- (Iowa 1977). sion of the court of and affirm the A motion for notwith judgment of the district court. *7 standing the verdict should be denied if there DECISION THE OF COURT OF AP- is support substantial evidence to the claim. VACATED; PEALS DISTRICT COURT (citations omitted). Faught, 540 N.W.2d at 35 JUDGMENT AFFIRMED. Conversely, evidence, judgment absent such notwithstanding the verdict be sus justices All except NEUMAN, J., concur tained. Id. “Evidence is substantial when a who joined by dissents and is LAVORATO accept reasonable mind would it as adequate TERNUS, JJ. to reach a conclusion.” Dodgen, Johnson v. (Iowa 1990). 168, 171 CADY, J., part. takes no upon record, Based our review of the NEUMAN, Justice (dissenting). plaintiffs presented conclude that suffi I respectfully dissent. cient showing evidence that defendant was aware of the condition of justify the to thing permit It is one to introduction of submitting jury. the case to the in proof record; For countering evidence the it is stance, plaintiffs presented quite evidence that the another to pur- for record slipped tipped or poses countering forward of argument. counsel’s Ju- past and that person at least one had fallen routinely ries are instructed that “state- grate. on ments, This evidence was arguments, sufficient to questions, and comments” generate a fact question plaintiffs’ on by lawyers claim are not Jury evidence. Iowa Civ.

269 Instr., Compounding disregard No. 4. defense counsel’s Model Instr. assertion. here, reopening transpired the idea of the record highly error What instead was a unusu- court, scenario, from the not counsel. Plaintiffs unfairly prejudicial came al to the defen- counsel, retrial, merely eager dant, to avoid a appeals rightly which our court of rec- should be ad- urged that counsel “[defense] ognized compelling as a new trial. I would this, required about and ... monished appeals, affirm the of the court of those statements and correct the withdraw thereby reversing the court. district record.” TERNUS, JJ., join LAVORATO and

Perhaps importantly, majority— more dissent. like the court —has mischaracterized district dispute as one over the grate. not con-

welding the Defendant was feasibility welding grate

testing

prevent slipping tipping; it capable being

obviously was welded down. merely sought explain argument

Plaintiffs “would work” because destroy grate’s functionality would —re- cleaning moval to allow for of collected de- JOHNSON, INC., Appellee, RINGLAND designed, bris. The drain was to allow the v. purpose. grate to be removed for this Board, Employment Appeal Iowa Division eases, product liability number Service, Respondents, of Job discussing arguing courts have held that in taking precaution the tradeoffs involved HUNECKE, Appellant. Brian J. ary implicate measures does not the feasibili No. 96-1888. ty exception 407. to rule See Gauthier (9th AMF, Inc., 634, Cir.1986); 788 F.2d 638 Supreme Court of Iowa. Co., Flaminio v. Honda Motor 733 F.2d (7th Cir.1984); Bush v. Michelin Tire 468 Oct. 1436, 1450 Corp., F.Supp. (W.D.Ky.1996). did, “feasibility” exception

If it to rule Bush,

407 would swallow the rule. “Feasibility”

F.Supp. at 1450. under rule merely refers to mechanical or techno

logical alleg obstacles in connection with the

edly instrumentality, defective defen ability to overcome them. See id.

dants

This, course, was never an issue in the ' feasibility excep- case before us. Thus the *8 arguably application.

tion to rule 407 had no Corp.,

See Mills Beech 886 F.2d Aircraft (5th Cir.1989). 758, 763-64

Whether the amounted inadmis- proof

sible of remedial conduct or admissible

proof precautionary mea- sures, ruling right wrong— the court’s — evidentiary made on the record.

was

Revisiting during closing argument the issue

unnecessarily emphasized the corrective appear a

measures and made defense counsel counsel, Upon objection by opposing

liar. simply should have cautioned the