*1 Gross, also known Ruth Holmes, appellee, C. I. v. Ruth as doing Café, Maitis, appellant. business Ruth’s as
No. 49602. 714) (Reported in N.W. 2d *3 1958. December Wilson, City, appellant. Stilwill & of Sioux for Crary Crary Huff, City, Wallace W. all Sioux for & appellee. Kings- J. Ruth is in the café in Gross business
Peterson, Plymouth ley, County. She maintains a café known as “Ruth’s building Café” on one of the main streets of the A town. new immediately was added to her in erected west business café, dining the old a building which new maintains she only places between of business room. The connection the two folding was a door at about the center the rooms. Custom- directly can room from dining ers enter both café and street. manager City of a Lumbermen’s
Plaintiff was sales Sioux re- Supply Company. evening On the of March dining room, had a in the tail lumbermen of that area dinner which he attended. This his first visit to the café. There was present. The dinner was approximately thirty persons were din- running lengthwise served a room. After at table ner a reel shown. movie was
After on. showing lights again of the reel the were turned going Plaintiff then chair, as hе was desirous arose his to a on signs men’s rest room. no as to facilities There were any doors In the south- places or other in the room. although east comer room, of the room was a ladies’ rest evening on the door. lettering put no had been There feet in very large air-conditioning was a unit about two door, causing front of this be hidden. At the door to somewhat the south end of room and was a coat rack across the center customers. corner the room was the southwest planter long. high feet five feet on a stand about three was Immediately plants. contained shrubs and back planter screen, height. Back of the about ten feet hallway screen was a door was an exit with two doors. One building. opened from the east The other door toward the hallway. from the
Thinking this door led into a men’s rest room opened pitch-dark door and discovered it entered into a space. hallway He assumed therе floor was a even with floor, light and reached around for an the doorframe electric *4 part body stepped switch. As a of he the same motion of his over the threshold of door. of floor it stepping the Instead on developed immediately away stairway leading that there was a any light from door. the He did not find electric switch and stairway. pitched forward of the headfirst the bottom seriously injured. hospital He confined in the was He was hos- stipulated weеks and it was that his medical and ten pital testified, The doctor without $2049.75. bills amounted to injuries evidence, permanent that he had any dispute the of the extent 15%.
242
In petition plaintiff alleged negli- the first count of the gence defendant, contributory of negligence and absence as of plaintiff. In petition plaintiff the second count al- of leged by II maintenance of a nuisance Count defendant. properly by was stricken trial court before the case jury. submitted to thе Defendant’s answer contained five divi- general sions. It was provisions exception in its with the of allegation an assumption part plaintiff. as to of risk on of
Defendant plain- moved for directed verdict at the close of tiff’s case and also after introduction of all evidence. Both Upon motions overruled. were submission to a verdict was returned favor of defendant. grounds
Plaintiff filed motion for trial new on various which we will consider hereinafter. motion was sustained. appealed Defendant has ruling of the trial court sus- taining motion for new trial. Appellant’s assignment
I. first of error is failure trial court to sustain motions to verdict, direct filed on basis negligence no part defendant, presence of contribu- tory negligence on part plaintiff. elementary passing connection with on a
motion for directed verdict the evidence must be viewed light most plaintiff. favorable to Lathrop Knight, 230 Iowa 272, 291; N.W. Demo, Crowell v. 231 Iowa 1 N.W.2d 93; Gowing, Stafford v. Stuрka N.W.2d Scheidel, 244 Iowa 874. N.W.2d negligence
In contributory-negligence eases it becomes imperative that each case considered on the basis the facts of that case. occasionally While prece- we find similarities as dents, the fact nearly remains that in all cases there are some differences which make consideration of the par- facts of each importance. ticular ease a matter of Gowing, supra, recognizеd Stafford v. we that situation when (page we stated 177 of Iowa, page N.W.2d) 159 of 18 : “The particular facts each case of are controlling this kind on the of negligence.”
Appellant has cited a pertaining number of cases to stair- ways falling areaways. and to into elevator In each ease cited there seems to be somewhat different state of facts. *5 a sketch of the room in We below order to show room, appurtenances, stairway its clearly illustrate stairway (dotted line). route plaintiff’s *6 question The of whether or not it was correct to sub jury mit the ease to depends physical on whether or not the surrounding circumstances place defendant’s of business are prudent such that might and reasonable minds differ as to the question negligence. Downing of Bk., Nat. Merchants 1250, 722, Iowa Odegard Greger 184 N.W. 20 A. L. R. 1138; son, 325, 559; Lindquist Iowa N.W.2d v. Des Moines Ry. Co., Union S., Neg 30 N.W.2d 65 C. J. ligence, section 251. day
In many this modem with so traveling automobiles through country passengers stopping for meals at restaurants and cafés, and family today with the going out often for meals instead cooking home, presence at ladies’ and men’s rest rooms in a café is almost as essential as tables and chairs.
There was a men’s room in building, rest the other where defendant café, had a separate but building. it was a The door ;was closed between buildings the two and this situation does not avail defendant negligence as to absence connection with her rest rоom situation.
Referring planter to the screen the southwest cor- ner of dining room, “I testified as follows: went to the southwest corner of this room rather than southeast corner planter because this in front of the alcove back there led me to hiding believe was the entrance to the rest room. ** IWhen planter referred to the I meant the screen *. The glass panel or go screen does ceiling.” not clear to the
On evening lettering there was no on thе stairway door. Since that time “Stairway” the word has been printed large on the door in black letters.
In addition danger to the physical inherent involved in the situation defendant had been warned dangerous as to this stairway Repeated on two occasions. warnings as to a danger- ous bearing condition had a negli- whether or not she was gent in the place maintenance of her of business. November of Hoyt Mrs. William came into the dining room for a meal. stairway As to the door she testified:
“Q. you Did see a door located in the southwest corner passed room? A. After I behind this screen Q. A. I did. you open that door? Q. there. Did that was A. I happened. As Tell the what happened? And what * * * I the rest room expecting step into opened the door Yes, I fell for I fell. door went inward. fell forward. * * * I did sign on the door at that time. was no There ward. # # indicating dining room ? any signs not observe not there Mrs. Gross was located. rest rooms were where the her.” time, informed I, at a later I fell but at the time year plain- was about before which March On dining room to into the Royer came injury, Mrs. Eva tiff’s She testified: cup of coffee. secure a around one in the
“I in the restaurant somewhere went go rest room. my purposes was to to the One afternoon. * * * door I planter, walked proceeded I behind As *7 * * * no There was fell into the basement. opened it and * * fell down day. After I door that .* sign marking on the or I and told her that fell.” I Mrs. Gross saw the stairs miraculous, that fortunate, neither of these two but It is injured. seriously ladies was present in connection with defend-
Another element was doorframe to negligence. Plaintiff reached around the ant’s At he fell light switch. that moment turn on the electric Gross, that Mr. hus- steps. the The record shows bottom the apparently working for or with defendant, who was band business, defendant restaurant had unscrewed the bulb the had stairway. If Mr. Holmes light the bottom of the the at any light not have been of value found the switch it would light have him, the would not because with the bulb unscrewed gone if had left the bulb hand, on. the other Mr. Gross On hap- light accident would never have screwed the socket the lighted pened stairway completely have because the would been being opened door, “pitch-dark” instead of as Mr. Holmes as he testified. negligence involved
There elements were sufficient evening room that in her so defendant’s situation as to conclusions to prudent and reasonаble minds could differ negligence were as to be drawn therefrom. The circumstances jury. say, justify to- We can well sufficient to submission Lindquist Ry. Co., supra, Des Moines Union as did in v. we (239 371): 370, Iowa at “Could a person reasonable-minded * * * negligence find from this record? question fact [It a] by jury.” to be determined S., supra, Negligence, C. J. section 251, page respect
states: “With to the nature and state of proof, ** * case should be- submitted to the where the evidence conflicting or is such that may fairly reasonable men differ as to the or conclusions inferences to be drawn therefrom.” question
II. The of contributory negligence on the part plaintiff raises similar situation. again Here we have if case, held innumerable times that the facts of a or the con facts, clusion as to the are such that differ, reasonable minds it jury. becomes a for the Downing v. Merchants Nat. Bk., supra; v. Corp., LaSell Tri-States Theatre 233 Iowa 36; Odegard Gregerson 11 N.W.2d and Stafford Gowing, supra; Jur., both 38 Am. Negligеnce, 192; section Hull v. Bishop-Stoddard Cafeteria, 238 Iowa N.W.2d Tucker Co., v. Tolerton & Warfield 86 N.W.2d 822.
When planter saw the and the screen in the south corner room, west almost amounted to an invitation to proceed him to back of the screen in the corner to look for a rest room. At least he was security lulled into sense of toas presence of a rest room under existing circumstances. There were two doors. He could see one an exit door. Under these right circumstances he had a the other believe door might logically lead into' a rest room.
Appellant emphasizes the plaintiff fact that when found at the bottom of the stairway he told defendant’s husband the fall fault; was his own he also-told defendant the same when she hospital. visited him at the seriously injured He was and shock, some when found at the bottom of the and stairway, seriously hospital, sick in the and his statements, under such circumstances, proper while by for consideration jury, the are hot as contributory conclusive to negligence. The final test is actually happened what physical and the surroundings involved in the case. quote
We will from some well-known decisions, ques- as to tion contributory of negligence, and its submission jury: to the
247 supra Downing Bk., (page Nat. 1255 of v. Merchants “ N.W.): 192 726 ‘It is a sound rule of law Iowa, page of 184 danger contributory negligence not to' look out for that is not ” any.' apprehend when there is no reason to Co., supra (pаge 409 Tolerton & Warfield Tucker v. N.W.2d): Iowa, 249 “As defendant also page 825 of 86 only in for the court the admits the one of law issue becomes care is exceptional plaintiff’s want of reasonable case where plaintiff so fair flagrant manifest to convince all minds as safety not for his which marks did exercise the caution own ordinary not prudent care, ordinarily conduct of men. highest required.” care, degree Cafeteria, (page 690 of Bishop-Stoddard suprа Hull plaintiff’s free- N.W.2d) “The Iowa, of 26 : issue page 451 have been submitted contributory negligence should dom from negligence are contributory cause and jury. Proximate to the very exceptional when case jury save in questions for the contrary in a conclusion.” must unite all minds reasonable Iowa, supra (page page Gowing, Stafford v. duty to exercise N.W.2d): “Plaintiff, while under of 18 negligence required anticipate himself, ordinary care was not part of defendant.” on * * “* pаge 871: Jur., Negligence, section 38 Am. anticipate negligence, and not ordinarily need negligence does not consti- anticipate ordinarily his failure by him action part his which defeat an will negligence tute injuries sustained.” for “* persons Negligence, section 83: as S., J.C. * * occupant of exists, or duty the owner whom a of care toward persons right- protect reasonable care property exercise must dangers.” traps, or hidden pitfalls, fully upon premises from his * “* * 116, page 707: Negligence, section S., 65 C. J. contributory negligence determining for the standards tests negligence determining ordinarily as are the same those * * risk involves a negligence lies in that *. The distinction negligence contributory involves injury whereas to another injured.” injury a risk of to the one and conditions were such that circumstances overruling motion for directed was correct in
trial court *9 248 ground contributory
verdict on the negligence, sub- mitting jury.
III. Appellant plaintiff asserts was not an invitee injury. at the time of his. Because of the nature оf the accident he proceeded she asserts that when left the table and to look opened room, by the men’s rest and mistake the door to the stairway, as his status an invitee ceased. general definition of an invitee is that he is who one business,
goes place to a by express implied either invita- or tion of occupant the owner or on business of mutual interest or in both connection with Noyes the business owner. Club, Des 178 Moines Iowa 160 215; N.W. Wilson v. Good- rich, 218 Iowa 142; Turnеr, N.W. Rodefer v. 232 Iowa 691, 6 N.W.2d Corp., supra; LaSell v. Tri-States Theatre v. Everett, 737; Stupka Sulhoff 16 N.W.2d Scheidel, supra. good find a
We responsibility definition of the of an owner in LaSell v. Corp., supra (page Tri-States Theatre 946 of Iowa, page 45 of 11 N.W.2d), rule, as general follows: “It a recognized dissent, without an occupant owner or of build- ings or premises, directly wlm impliedly or invites or induces others therein, active, to enter duty owes an affirmative to such persons to ordinary reasonаble, keep use premises care to such reasonably in a safe condition, unreasonably so as or not to unnecessarily expose to danger'.” them
anAs by illustration a decision this court which estab- lished the status of an being simply invitee as broader than coming coat, beauty into a store and buying going a or a parlor for hair or service, going sitting a into room and at the eat, quote table tO' we following from Sulhoff v. Everett, supra (page N.W.2d) Iowa, of 235 pagе of 16 : argument “The is that upon because the came premises for her coat, and would no this be of benefit to the beauty shop operator, a a then she is as. licensee matter law. argument We do not uphold sound. To believe this it would shopper mean that the a package, who returns to store for a purse, pair gloves, or other article which shopper has behind, inadvertently left would be a mere licensee to whom the duty ordinary store owner no owes of reasonable and care with
249 Surely implied premises. condition o£ the respect to the that.” upon premises is broader than invitation to come premises as an invitee. He upon the Plaintiff came came to the room of part group which was a dinner, his for which defendant, public place, and was served a jury to question to be submitted paid It a of fact $1.75. he continued he to or not under the circumstances as to whether custоm, which present-day now an invitee. In view of the be up-to-date requirement, a that modern to almost amounts going an invitee while rooms, he would be cafés rest maintain S., Negligence, J. in a rest room. 65 C. coming or from and while if he had situation 48(e). have been his section This would However, the unfortunate since men’s room. gone into' a rest go to a attempt his in with connection accident occurred jury as whether question of fact room, becomes a rest an invitee. hе still or not was S., this supra, C. J. on
The as to the article headnote subject “A business visitor of customer or other is as follows: of an invitee or business the status place a store or retains from, making to, returning or use going business while visitor other of, use customers or a maintained for the toilet which is business or other visitors or which customers business visitors permitted ordinarily are to use.” question
The properly trial court submitted the jury, and the instructions to we hold that in connection with jury again when cаse is it should be submitted retried as a for the to decide. fact Appellant
IV. the instructions of the vigorously contends a trial court when as whole were correct. considered
appellee’s position that court committed serious and the trial justified prejudicial granting the new trial and was errors on the basis of errors. such many has cases that trial court
We have held
a
trial.
granting
in connection with the
of new
wide discretion
26,
Perry
Engnell,
283;
Iowa
199 N.W.
Morton
Nat. Bk. v.
198
Co.,
325,
Equitable
254 N.W.
v.
Life Ins.
Iowa
259;
Schantz, 220 Iowa
264 N.W.
315;
A. R.
Jordan v.
L.
300 N.W.
Wilson
Iowa
Hicks,
Greiner
Iowa
In the instructions the court used the modern term of in five places. different places of Some the where “and/or” phrase the was used general were In unfortunate. “and” terms means to add something already said; to what has been “or” in the means alternative.
We have heretofore frowned Poрham on use in of the term Case, 52, 57, 226, 229, 271 N.W. in which we said: may it necessary “While not ques- be ato determination of the presented by tions appeal, this opinion the writer of this Sager] express wishes to disapproval [Justice his of the use mongrel of that expression place which pleadings: finds in the ‘and/or’.” general opinion juris- many of in consensus cases
dictions over nation contrary expression. is to the use of the In 41 Am. Jur., Pleading, section “As it is stated: a matter expression рleading, the has met with unfavorable ‘and/or’ comment. equivocal connective, been an has characterized as being conjunctive positively disjunctive. positively neither nor Seemingly, subject expression most cases the special to demurrer, may subject and render pleading gen- it itself eral demurrer.” comprehensive
A analysis term, showing various decisions approved reason, where it has been for some and others in disapproved, appears which it has been in Volume Phrases, page Words and 640.
We now hold it is not advisable to use this term in instruc- tions. It might prejudicial be used in connections it where is not unsatisfactory misleading and often so phrase but the error, of instructions. be left out should it granted trial court which the basis on
Y. The other had been committed error prejudicial that a new trial was instructing the and 12 in connection with 4, 6 Nos. Instructions of risk. assumption jury as to
In the elements Instruction No. trial court listed evidence, necessary prove by preponderance plaintiff he “did not among prove elements he must such stated assume the risk thereof.” theory explained Instruction No. court
assumption proving absence put of risk but still burden of upon plaintiff. thereof again
In the paragraph listed first of Instruction No. paragraph plaintiff 1 that the must determine whether if negligence; any.” himself “assumed the risk of defendant’s does veer paragraph In the last No. 12 the court Instruction placing burdеn it on defendant placing plaintiff by stating by preponderance proved “if not the defendant has negli- risk evidence that assumed the of defendant’s gence, any.” if
Appellant urges paragraph of this cured last use paragraph the errors in Instructions 6 and first of 12. Nos. Prejudicial irreparable already done when damage had been *12 paragraph the court instructed in 4 and 6 and the first of Nos. plaintiff No. 12 a of preponderance that there was burden assumption to establish of of risk. The instructions absence 12 conflicting, paragraph were 6 first of erro- and and the neous. ordinary contributory negligence
This is an and ease of assumption negligence and matter of risk should not the of injected Zell, 359, 276 224 Iowa N.W. be into the ease. White v. Kirk, 875; v. N.W. Bohnsack Edwards Am. 79, 84; Jur., 52 N.W.2d Driftmier, 243 Iowa 174. Negligence, section risk" in
Ordinarily assumption the of of is doctrine However, in and volved between master servant. cases as activity. fields Bohnsack does occur in оf human other Driftmier, page 243 Iowa: “Mere supra, we said at of care, more,
lack of assumption without does to not amount of risk. The involves a choice between a doctrine course known to dangerous be one that is not.” A quoted and definition “ 358, 361, 18 Iowa Law appears Review in the same case. ‘The assumption negligence doctrine of risk is based on of not but voluntary assumption the danger by of the with full ” ** knowledge thereof *.’
In 38 Jur., Am. supra, page 848, section we find the following statement: “The doctrine of assumed rusk based upon voluntary exposure applicable danger only to. and is injured might reasonably cases where person elect whether expose peril. or not he exposure should himself to If the injured of party peril inability rea- was due to his sonably escape became, become, aware after he or should have danger, apply.” the doctrine not does question was error for the trial court to submit the assumption of risk submitted, manner which it and under the facts assumption of this case the- risk should not have been and submitted should not be included in the instructions when the case is retried.
We hold trial court should not have directed verdict for defendant. We hold also the action of the trial court granting a new trial was correct. ease affirmed.
Appellee’s printing computed per page cost is at $2.40 forty-nine pages. ordinary By printing rule we limit cost per pagе. Any $1.50 this amount cost above shall not be appellant. taxed to. —Affirmed. J., C. and
Garfield, Bliss, Larson, Linnan, Oliver, JJ., concur. Wennerstrum,
Thompson Hays, JJ., dissent. (dissenting) J. am unable to in Divi- concur Thompson, —I II sion majority opinion. I am not convinced one upon whom proof rests the burden of to. show freedom from contributory negligence by opened carries it that he evidence closed door, knowledge with no. side, what on the was. other *13 and plunged forward total inquiry into He no. darkness. madе as to the location seeking; he was not toilet door was caution, if proceeded with have at least he should marked and territory.' in unknown about to blunder he chose IY Division materiality in discussion I also see no trial. This granting new court in the discretion of discretion, exercise its purport did not the court the reason in instruc- to be errors thought ruling on what placed but its if defendant been; but may have Error there tions. plaintiff’s failure verdict because directed entitled prej- it was not contributory negligence, freedom show udicial. dissent. J., this concurs
Hays, Highway Fay C. Hostert al., appellees, v. State et Commission, appellant.
No. 49524. 773) (Reported in 93 N.W.2d