*1 Building Clarence Brown, appellee, Corporation, v. The Sioux appellant. No. 49135. (Reported 471) in 83 N.W.2d June Baron, Yaneff, City, appellant. Brown & Sioux A. D. Clem, Rhinehard, Chas. M. Gasser and Richard all City, of Sioux for appellee. *2 sought damages by J. Plaintiff reason
Wbnnerstrum, injuries sustained, resulting from marquee a fall from a erected over the entrance to the Building City, Commerce Sioux Iowa. portion This building plaintiff the fell while working the was on one of the rods marquee. brace which sustained the He based his case on the doctrine of ipsa loquitur. res The defendant denied applicability the pleaded of this doctrine and plaintiff the knew, or the exercise of known, reasonable care should have marquee the condition of the and the rod which he was working Upon at the time of accident. the trial the cause was only theory ipsa loquitur. submitted under the jury The plaintiff returned a verdict for the in a substantial amount. Various by motions were submitted following the defendant the jury verdict, by which were overruled the trial court. From judgment the rulings entered and the adverse to the defendant appealed. it has August manager
On Building of the Commerce telephoned the Pioneer Iron Works in City Sioux and advised an company individual connected with support one of the marquee rods of the building on the was rusted and asked that it be fixed. Thereafter, one of the owners the Iron Works and plaintiff, employee company, got on top of the marquee which was some 16 feet above the They street level. supporting checked connecting rod at the southwest corner. This rod was composed parts, two one which extended from proper the building down connecting to and with another rod that was embedded in marquee. These rods were connected by interlocking eyebolts point approximately at a 18 inches from marquee roof. The Iron owner Works directed the plaintiff relative to what should be fix supporting done to representative rods. No building company directed the plaintiff employer regard his to the manner in which the work should plaintiff employer be done. The was directed his piece eyebolts. to weld metal across the two
Later, preparing suggested and while to do welding, plaintiff chipping used hammer to clean paint the rust and off they joined the rods where interlocking were eyebolts. doing work, While he was this only after chipped he had portion this of the rod two or times, pulled three the rod out marquee causing from within the it to fall down and towards the street. marquee rod which extended into
The was welded or riveted to what is termed as a channel iron inside it. As a result plaintiff the fall of the also fell and received injuries. testified regarding his observations after * * “* fall, his I up as follows: looked I could see what angle straightened should have been an had out, angle and this underneath canopy support it, should been and this eyebolts was still connected to the I working angle on. This eyebolt must have been at least two feet from the I working *3 eyebolt on. It wasn’t at the gave way, that it it was from under- canopy pulled neath the that it out, something that couldn’t be seen. I never did angle see that iron until it was in hanging air, lying the in while I was immediately my the street after fall.” previously plaintiff
As stated the based case on his the ipsa loquitur. doctrine of res The defendant denied appli- the cability pleaded of this doctrine and plaintiff the or, knew in the exercise care, of reasonable should have known the condition of the rods the which he working. By reason of the pleaded plaintiff last claimed fact it was the assumed the risk attendant to the work and the surrounding conditions. The plaintiff reply deny did or assumption the issue of of risk until after he had rested his case and after the had defendant moved for a directed verdict. The permitted file a denial of this last referred objection to issue over the of the defendant.'
I. Inasmuch as the correctness of the submission of the issue of res paramount question the is in this case we shall applicable consider first the law and apply thereafter in present the facts case. rule, ipsa known as the doctrine of loquitur res is that, thing the effect where the which injury caused an is management
shown to under be of a defendant his servants things ordinary in as when accident is such management or control happen if who have its does not those consequently evidence, proper care, it affords reasonable use arose explanation defendant, that the accident the absence (2), Negligence, section S., from care. 65 C. J. proper want of page 987. 220(8), S., Negligence, J.
And stated in 65 C. section it is doctrine “In order render the follows: page 1006, as necessary an accident loquitur applicable to show ipsa it is and the attendant cir- injury, injury, physical cause occurrence as an indicate such unusual cumstances must hap- experience presumably would light ordinary physical management if or control of the pened had those who proper had care.” cause exercised section, page it is further
And in cited at the last general the rule conformity “In with the statements stated: applicable only is supra §220(2), the doctrine as discussed circumstances physical and the attendant cause of very in their nature indicate occurrence that such an unusual they carry strong negligence and in the probability inherent experience hap- not have light presumably management pened or control had exercised those who had the if proper (Emphasis supplied.) care.” necessary
This has summarized the features which court loquitur Young applicable ipsa doctrine of res make “* ** Marlas, 51 N.W.2d 445: It legal principle permits name which for a inference (1) negligence upon proof establishes defend defendants’ instrumentalities ants’ exclusive control and injury, such as in causing (2) the occurrence was *4 happened of have events not without (Citing City of defendants.” Eaves v. 956, 761, 1164, 11 A. L. R.2d Ottumwa, of 240 38 N.W.2d Sample cited.) also, effect, the same v. and cases See there 1198, 54 N.W.2d Schwenck, 1189, 290, Miller, Super. 293, 14 N. J. of Francisco v. ease 806, 807, quite in 296, 297, point A.2d 298, 81 and by portion opinion of of the quote shall that reason sim- we ilarity application of and their law: facts “On June 7, 1950, pursuing while preliminary examination proposed alterations, Mr. first stepped Herman out platform onto escape, plain window the fire and when tiff, immediately who him, platform followed it, came collapsed. Both Mr. Herman and the fell to the surface alleyway beneath, resulting the death of Mr. Herman * * * bodily injury and plaintiff. to the
“Although the
an
occupier
premises
owner
of the
is not
insurer,
injurious
by
he
consequences
is liable for the
suffered
by
invitee
reason
knowledge
defects which he has
of- defects
that, by
which have
so long
existed for
a time
care,
exercise
reasonable
he
opportunity
had both an
to dis-
remedy.
Bamberger
cover
81Co.,
Schnatterer
&
N. L.
J.
S.,
1911); Thomp-
A.
34 R. A.,
(E.
L.
N.
& A.
son
Tiger Corp.,
(E.
v. Giant
A.
N. J.
A.
&
1937);
Barbiera,
Daddetto v.
Super. 479,
N. J.
“It is compass within the principles of the above-mentioned of duty liability scope we probative that consider the present evidence in the case. it
“Assuredly reasonably been could inferred jury any from that had the evidence the decedent actual knowledge notice or of the obscure defective condition and never- fraudulently theless concealed deliberately his jeopardized safety. own his inquiry necessarily converges
“Our therefore upon the question in any logical whether aspect of the evidence the defec- tive condition long that, by had existed so a time the exercise reasonable decedent, care the defendants’ had he both the * * * opportunity remedy to discover and to it.
“The inference is that irresistible the corrosion of angle except by bars extraordinary was indiscoverable means of some * ** investigation. opinion “We are of the fair-minded men would not logically honestly infer and that in resolve all the uncontroverted present circumstances of the case defendants’ decedent was guilty culpable neglect observing a defective condition *5 period so hidden in such a of time and thus failed to exercise precaution commonly employed by person the care and a of rea- foresight, vigilance, prudence. sonable Vide, and Gentile v. Pub. Transport, Super. 45, Service Coordinated J. A.2d (App. 1951).” Div.
Another similarity ease which to the now has one before us Hickey (1951), 317, 324, 325, 331, is that of Miller v. Pa. 910, 914, In 81 A.2d cited case the was work this ing escape on purpose cleaning, brushing a fire for the scraping preparatory painting it it. He had continued his work period for a short of time and then decided he needed paint put some and turned around and his left hand on an gave way. grabbed outside rail which Plaintiff right with his hand to hold on but fell headfirst to the sidewalk.
In
“An
possessor
the cited case it is stated:
owner or
of land
insurer;
charged
duty
is not an
he
with the absolute
is not
having
premises in
contrary,
his
condition
on
safe
but
owes
duty
to a
only
business visitor or invitee
of reasonable care
protection
for his
safety,
keep
premises
viz.:
in a
reasonably
any
safe condition and if there be
defects known
or
diligence,
discoverable
the exercise of reasonable
eare
dangers;
to warn the
business invitee
these defects
but
ignorant
for a latent
or possessor
defect
which an owner
and which could
not be discovered
the exercise
reasonable
diligence
care and
he is
liable: Lentz v. Allentown Bobbin
Works,
541; McCreery
140 A.
Pa.
v. Westmoreland
Bureau,
399;
Farm
357 Pa.
55 A.2d
Sorrentino v.
Graziano,
373; Newingham
341 Pa.
17 A.2d
v. J. C. Blair
Co.,
232 Pa.
A.
Vetter
v. Great Atlantic & Pacific
Co.,
Tea
322 Pa.
185 A.
Bechtel v. Franklin Trust
* * *
Super. 587,
120 Pa.
“Considering all the evidence and all reasonable inferences light therefrom in plaintiff, most favorable to the he not only prove failed any specific negligence defendant, obviously dangerous the existence of conditions so as to amount to from which an evidence inference of legitimately arise, prove but he likewise failed to that proper defect could or should been discovered by or rea- *6 inspection. of sonable This failure is tbe touchstone this case.” commenting upon ipsa loquitur In it is the doctrine of res in stated the last cited case as follows: “Great care must be exception exercised to limit restrict this so-called rule or exceptional, (b) cases where of (a) which are the evidence equally parties the cause of is available to both the accident peculiarly exclusively but is or accessible to and within the possession Rockey Ernest, 538, of 80 the defendant: v. 367 Pa. 783; Philadelphia Co., 161, A.2d 334 Pa. 5 Norris v. Electric Dickey A.2d Boggs Buhl, Inc., & 345 Pa. A2d v. exception applied literally, Were it it otherwise and were the nullify destroy long and well settled established principles negligence.” Hickey
A number opinion of cases are cited in the Miller v. in support holding to the effect that the doctrine of res applicable. was not Sample supra,
And
case,
Iowa
527, 531,
N.W.2d
we stated: “The
condition has been held
first
mean the
must be much under the exclusive
so
superior
control
him
charge
knowledge
of defendant as to
with
means
information as to the cause of the accident. 65
S.,
Savery
C. J.
Negligence,
220(5);
Kist,
section
v.
Iowa
98, 103,
involving
ipsa
And inso the instant case we are under applicability determine disclosed whether facts show requirements the two heretofore noted. We are constrained to hold there is an entire lack of evidence to show there was such defendant-company charge exclusive control as to it with superior knowledge of information as to the cause of means the accident. It is the owner of the build is true defendant ing, give “superior but that itself does not the defendant or means of information as to the the acci cause apparent dent.” when it At the time fell plaintiff’s because control it in exclusive defendant was unable to we are And likewise activity tbereon. presence and in the such as was “the occurrence reach the conclusion happened without have would not events of defendant.” ipsa of res hold doctrine court, which Cases this following: Fanelli v. applicable, include the loquitur was not 13, where 674, 69 N.W.2d R. Illinois Central charge of company was defendant the facts show the showing no fell but there from coach which the could the carrier defect which caused a visible 1352, 1363, 66 Curtis, 245 Iowa discovered; Shinofield v. plaintiff’s decedent was 50 A. R.2d *7 had fatally injured shortly after she lying found on the street the it was said and where alighted from defendant’s truck not show there was may negligence but it did show evidence if reasonable happened an accident which would not such motorist; Sample Schwenck, supra, v. by care had been used plaintiff 527, was 1198, 54 N.W.2d where 1189, 243 Iowa building which was injured falling of a farm by reason of the had no shown the defendant being raised and where it was by plaintiff possessed greater of than was means 501, 12, 45 N.W.2d where employee; Dodge McFall, v. 242 Iowa destroyed by fire and where it was held plaintiff’s building was negligence arising from the mere presumption there was no of 956, 969, injury; City Ottumwa, of 240 Iowa fact of an Eaves v. overflowing 1164, A. R.2d where the of 761, 38 N.W.2d result of instrumentalities under water was not shown to be the defendant; management the exclusive control Pierce and Gruben, 881, v. 21 N.W.2d where it was shown 329, 237 Iowa did not of the instru the defendant have control except involved at the time it was installed some mentalities accident; Armstrong, v. considerable time before the Barton 737, 734, 912, Iowa 23 N.W.2d where the decedent was killed by when struck and run over a trailer-tractor owned if defendant and it is noted the circumstances disclosed where negligence they are not such as tend to indicate then cannot speak. be deemed loquitur ipsa eases have held the
Our
which
doctrine
res
applicable
following:
include the
Frost v. Des Moines Still
Osteopathy
294, 299,
College
Surgery (1956),
as
79 N.W.2d
result of ether and where
306, 310,
where
plaintiff
the court
injured apparently
held,
“*
[*]
[*]
corporation
‘complete
defendant
had
control’ over its officers and
employees excepting perhaps
they
engaged
personally
when
were
* *
professional practice
osteopathy
*”;
surgery.
Hall v.
(1956),
Town Keota
N.W.2d
Iowa
young boy
light pole
where a
was killed
falling
a
it was
pole
held the record showed the
was under the exclusive
right
tamper
control
the town and no one
had
else
a
with
it;
Johnson,
Johnson v.
65 N.W.2d
Iowa
running
alleyway
defendant left a tractor
and out of
near
gear
during
alley
and which
his absence crossed the
and crashed
through
plaintiff’s building;
end
Young Marlas,
the back
v.
supra, 243
Iowa
where it was held when a
glass
building
window
fell from defendant’s store
onto the side
injured
walk and
prima-facie
case under the
ipsa
doctrine of
loquitur
out. It is
was made
there held the
proof showed the
defendant was
exclusive control and man
agement
causing
of the instrumentalities
and the
occurrence was such as in the
events would
happened
not have
without
defend
; Savery
ant
Hist,
98,11
N.W.2d 23, where a defend
ant’s
alleyway
tractor-trailer
ran down an
unattended and
*8
crashed
building injuring
plaintiff.
into a
It
was there held
the doctrine
theory
was based
that one who had charge
thing
of the
injury
that caused the
either knows the cause of
opportunity
accident or has the
ascertaining it;
best
of
Peterson v. De
225
Co.,
737,
Luxe Cab
Iowa 809, 281 N.W.
door
opened
of a
in
resulting
taxicab was
an
plaintiff’s
to
eye and wherein it
held
ap
the doctrine was
plicable.
Moravec,
352,
See also Whetstine v.
228 Iowa
291 N.W.
Butts,
425; Pearson
v.
Iowa
276 N.W.
Sutcliffe
Dodge
Fort
&
Gas Electric
Bliss, Garfield, Peterson, Smith, JJ., concur. Thompson, JJ., dissent. Oliver,
Larson (dissenting) myself agree J. find unable to with Larson, —I majority in the determination that the “doctrine” of res ipsa loquitur apply. Otherwise, I does not find no fault with the announced rules of nor cited, law with the authorities but they properly applied feel are not the facts this case. degree of care one must is commensurate exercise with duty upon Negligence one to exercise due care. is the failure Negligence defendant, course, exercise such care. proved by can evidence, be circumstantial but under the doctrine proof supply of certain facts the inference necessary recovery. See Iowa Law Review Curtis, Shinofield v. Iowa N.W.2d applicable require (a) citations. The rules that the accident ordinarily be a kind which does not occur absence someone’s negligence; (b) that instrumentality it is caused within the defendant; (c) exclusive control of the possible elimination any contributing conduct which would plaintiff responsible. make Torts, Series, Prosser on Hornbook page 291. including Iowa, It true some authorities, suggest also explanation that the evidence as to the accident must readily be more accessible to the defendant than to the' plaintiff, better long but the view is that so as circumstances give rise to negligence, a reasonable inference of show- latter ing required, is not essential. If even this element is found herein. here, clearly believe,
Circumstances I reveal or sets facts permit, though they compel, finding facts which do negligent. the defendant was in City Ottumwa, fact Eaves v. A. R.2d 1164. Of *9 occurred, nothing the mere fact that an. accident with more is negligence. Perhaps ma- place not evidence this is the into error. This jority falls accident was unavoidable. It was explanation. not an occurrence that defied The actual condition marquee duty A could should have been discovered. management appears neglected. to have been Defendant charged duty marquee extending keep was with a over public light sidewalk in a In reasonably safe condition. ordinary experience, dangerous are such structures unless kept good repair. imperative Bust and wear make it that regular complete inspections parts, of all be made hidden as well as visible. Visible evidence of such rust weather- wear, hasty inspection by management, gave discovered á warning disintegrating parts. mute Was this not sufficient warning to parts, though alert the that other hidden view, from were likewise affected? It must be said that all that required here say is is that reasonable men shall be able to that likely the whole it is more there was asso- ciated with the cause than that there not. Failure struc- parts tural not inspected carefully maintained, especially give after warning, due must negligence. rise to an inference of jury thought The so, agree. and I It interesting also to note offending marquee fact that completely has now been removed. duty keep reasonably in a safe condi-
tion was commensurate with the hazard involved to those invited to use it—above as well as plaintiff, below. That it extended to an invited defect, workman who repair went thereon to a visible there can be no doubt. He not an unforeseeable victim of a failure of other parts. defective structural duty There was a to him public as well as to the generally to maintain the struc- ture in reasonably safe condition. The condition a welded joint, and riveted facing concealed within the of the structure a short from apparent defect, distance could have been found upon further examination. discovered, It was and it did fail. Do give not such facts rise to an of negligence inference degree defendant? Such person permitted of care toward a to submit himself to hazard involved seems to me as not calling an unreasonable burden defendant. *10 saying me majority further there is an confound The to there was such exclusive control entire lack of evidence show defendant-company charge superior knowledge to it with by Who information as to the cause the accident. means of of this structure? Who found a defective did have control repaired? Who have it could and should knuckle and asked to injury inspect prevent to to this workman the entire structure general public passing beneath the same ? Who else could safety? of the structure’s Was or should obtain the company inspect upon the to and find the it not incumbent ? defects portion was shown the defendant wished
Plaintiff’s employer repair method of left to-the contractor. repaired, and perhaps structure could have and should have been The entire repairs, Only part him for but it was not. a small turned over to repairman. obligation it was referred Was not defendant’s keep structure’s condition and it safe? Were not all to know the duty per- persons properly using it entitled to assume that employer carefully performing Plaintiff and his were formed? them, that dicl not assigned the task small sector fail. in exclusive control of The failure came another Could it it was not defendant, and defendant alone. be superior knowledge of the structural condition charged with a thereby marquee? escape all inferences of of that Could it negligence by merely stating it was unaware of the hidden I think not. defect? many holding public cases utilities and are others underground pipes
structural failures of hidden that are defec- distinguish fail damage tive and cause to others. I them from apply bar. the case at Res has been held to Light Co., 184; 39 N.E. Carmody v. Boston Gas Mass. Minn. Co., 111 N.W. Gould Winona Gas City Long Beach, 111 A., S., 889; L. R. Buffums’ v. Cal. App. 327, Johnson, 295 P. Frenkil v. 175 Md. 3 A.2d Laundry 479; Kleinman v. Banner Minn. 186 N.W. R. Also annotation at 11 A. L.R.2d 123, 23 A. L. see 761, A. L. Ottumwa, Eaves v. R.2d many In therein; others. 1164, and eases cited Eaves through court, speaking Justice Garfield, page case this said at 969 of 240 Iowa: doctrine, injury
“Under this occurs instrumental- under ities the exclusive control and of defendant and the occurrence is such as things course of happen would not if used, reasonable care had hap- been pening permits compel but does not an inference negligent.” (Citing that defendant was cases.) Also see 38 Am. Jur., Negligence, section 295. *11 ipsa loquitur
I clearly feel res applicable here where general obligation there was a to exercise due care, a special condition, due to the visible and a clear inference, if proper inspection had been made, general specific repairs would have been necessary to make safe for expected all those or invited to use it.
Would the determination
any
have been
different had the
pedestrian
been a sidewalk
crushed
the falling mar
quee Surely
?
apply.
then
As to similar
pertaining
cases
falling
awnings, see annotation, 34 A. L. R.2d
486; Potter v. Rorabaugh-Wiley Dry
Goods
Kan.
112 P.
A.,
S., 45;
32 R.
McCrorey Thomas,
109 Va.
63 S.E.
17 Ann.
Cas.
State,
Schnur v.
35 N. Y.
Barratt,
S.2d
H.S. Kress & Co. v.
Ala.
I would affirm.
Oliver, J., joins in this dissent. Joseph’s Mercy F. Arthur Jensen, appellant, v. St. Hospital, City, corporation, Sioux appellee.
No. 49163. (Reported in 403) 83