15 N.W.2d 286 | Iowa | 1944
[1] The principal question is the sufficiency of the evidence to take to the jury the issue of defendant's negligence. We will view the evidence in the light most favorable to plaintiff.
Defendant operates a hardware store in Cedar Rapids. Plaintiff, a trucker for a near-by farmers' elevator, presented at defendant's store a written order from his employer for two sheets of galvanized steel, three by eight feet. Defendant's clerk sent plaintiff to its warehouse, in charge of Gable, the only employee there. Gable directed plaintiff into the warehouse with him to see if they could find sheets of that size. They finally found a pile containing some sheets of the desired size. The sheets were leaning against two upright two-by-fours nailed together. One of the eight-foot edges of each sheet rested on the floor. The top of each sheet was closer to the supporting uprights than the bottom. The pile contained some twenty to twenty-five sheets of different widths, "all mixed up all the way through." Most of the narrower widths were farther from the upright than the three-foot widths. It thus became necessary to remove from the pile two sheets of the desired width. Gable asked plaintiff to help him do this.
As directed by Gable, plaintiff stood about two feet south of the north end of the pile. Gable went to the south end of the pile and with an iron stick about two feet long pried or pulled several sheets against plaintiff's left leg. As directed, *1383 plaintiff was attempting to hold the sheets in a vertical position with his leg and hands. Suddenly the pile fell on his left leg and broke it. Each sheet was one-sixteenth inch thick and weighed fifty-three pounds. The sheets that fell on plaintiff weighed one thousand pounds or more. Before his injury, plaintiff was without experience in handling sheet steel. He was not warned of any danger. Gable had been in charge of the warehouse some five years.
Plaintiff testified:
"He [Gable] got more than two or three sheets at a time, and I think I had around eight or ten sheets there, and all at once, why, the whole pile came over, and that is all I can tell. * * * I wasn't * * * pulling any sheets, no, I was holding the edge of the sheets attempting to steady them and keep them from falling over and it is my recollection that at the time the sheets became unbalanced and due to their weight I couldn't hold them. * * * Mr. Gable was doing the pulling, I wasn't. * * * I continued to hold the sheets in the perpendicular position by having them against my leg until those other sheets whipped and the pile came down."
Plaintiff's petition is in two counts. The first is based on the theory of res ipsa loquitur. The second count contains ten charges of negligence. It seems not to be seriously contended that res ipsa loquitur is applicable here. We therefore disregard the first count. One of the charges in the second count is that defendant was negligent in allowing the galvanized sheets to fall and break plaintiff's leg. Defendant made no attack of any kind upon this allegation. See Gookin v. Baker Son,
I. We think the issue of defendant's negligence should have been submitted to the jury. There is little doubt that plaintiff was an invitee in defendant's warehouse. McMullen v. M. M. Hotel Co.,
From the evidence received and that offered which should have been received (see Divisions III and V hereof), the jury could have found that: Plaintiff was injured as a result of Gable's act in prying the steel sheets against plaintiff's leg; plaintiff was doing merely what Gable had directed him to do; Gable knew or should have known the qualities of sheet steel of this kind and plaintiff did not, e.g., its flexibility and tendency to "whip" when moved in a vertical position; Gable knew or should have anticipated the danger of attempting to remove sheets in this manner from this pile and plaintiff did not; this method of piling and removing sheets was not usual, customary, or safe; the pile of sheets fell on plaintiff at least in part because Gable negligently pried more than two or three sheets at one time against plaintiff's leg.
The facts of each particular case of this kind are controlling upon the question of negligence. 38 Am. Jur. 763, section 102. However, the following tend to support our conclusion: Fishburn v. Burlington N.W. Ry. Co.,
[2] II. While the grounds most relied upon in support of defendant's motion to direct challenge the proof of its negligence, one ground of the motion is that "the evidence affirmatively shows contributory negligence on the part of the plaintiff." Defendant argues that if there was danger to plaintiff from *1385
what was done, it was apparent to plaintiff. We think, however, here, as ordinarily, the question of contributory negligence was for the jury. As stated, the evidence is that plaintiff had had no previous experience in handling sheet steel. We are not justified in concluding that he necessarily knew or should have known any danger incident to this method of removing the sheets. He was not required to anticipate any negligence on the part of defendant. Tending to support our conclusion are Riggs v. Pan-American W.P. P. Co.,
[3] III. Some other errors are assigned. Plaintiff offered to prove by Bruzek, for sixteen years proprietor of the Cedar Rapids Sheet Metal Company, who for thirty-five years had handled steel sheets of this kind, that the usual, customary, and safe method of piling such sheets in Cedar Rapids at that time was flat on the floor or in racks, according to size; that it was not safe to pile sheets of different widths with the tops resting against posts; it was not safe for one man to handle sheets of this kind; such sheets are flexible, slippery, inclined to slide, and are hard to handle; where they are handled from one end they are inclined to bend or whip at the other end and throw the weight of the entire pile against such other end.
Plaintiff testified that while he had had no experience with sheet steel before he was injured, later for over a year he had handled about three truckloads a day of the same kind of material. He offered to testify that at the time of trial he was familiar with the usual, customary, and safe method of piling steel sheets at the time he was injured in Cedar Rapids; that method was to pile the sheets flat on the floor or in shelves in separate piles according to dimensions; it takes two men to handle a sheet of steel three by eight feet.
All this offered testimony of Bruzek and plaintiff was excluded. The only objection to the offered testimony of plaintiff was that of incompetent, irrelevant, and immaterial, and that the piling of the sheets had no proximate relation to their falling. The objection did not challenge the competency or qualifications of the witness and the ruling was not placed on that ground. *1386
We think the above-offered proof should have been received. It is well settled, subject to certain exceptions not applicable here, that while it is not a conclusive test, evidence of what is usual and customary is generally admissible on the question of negligence. LaSell v. Tri-States Theatre Corp.,
[4] IV. Defendant seeks to justify the trial court's exclusion of much of the above-offered proof on the theory that there is no causal connection between the manner in which the sheets were piled and plaintiff's injury, which is said to have been caused by the attempt to remove the sheets from the pile. The argument is that Gable's attempt to remove the sheets from the pile was an intervening act which breaks the chain of causation between the method of piling the sheets and the injury. We think, however, it cannot be said as a matter of law there was no causal connection between the manner in which the sheets were piled and plaintiff's injury. The jury could have found from the evidence that the whole pile of sheets — not merely those resting against plaintiff's leg — fell on plaintiff.
Defendant was responsible for piling the sheets and also for their removal from the pile. The doctrine of independent intervening cause primarily refers to some act or agency for which a defendant is not responsible. Johnson v. Plymouth Gypsum Plaster Co.,
"Clearly, one cannot be relieved of liability for one negligent act by interposing another, also committed by himself." 38 Am. Jur. 721, 722, section 67.
Even an intervening agency for which a defendant is not responsible does not necessarily relieve him from liability for his negligent act. Restatement of the Law, Torts, section 441 (2). If the original wrong concurs with the intervening cause and both act proximately in producing the injury, both as a rule are proximate causes. Judd v. Rudolph,
[5] Further, where a subsequent act is relied upon as an independent intervening cause, it will not have that effect if it or a similar act might reasonably have been foreseen. Blessing v. Welding,
[6] V. Plaintiff was asked on direct examination, "While you were back there, immediately after the pile had fallen off on your leg, what if anything more did Mr. Gable say with reference to the pile?" Over defendant's objection as hearsay the witness was permitted to answer. "He said there was fifteen hundred pounds of steel fell on there. I was pretty lucky I had six-buckle overshoes on." On cross-examination plaintiff said that he, not Gable, made the statement about his being *1388 lucky, and that it was made after he had been carried into the office of the warehouse. On defendant's motion that it was no part of the res gestae there was then stricken the entire answer of the witness above quoted. On redirect, plaintiff testified that he had two talks with Gable, one immediately after the sheets had fallen on him, and the other in the office, with reference to his being lucky.
Plaintiff could have suffered but little if any prejudice from striking the second sentence of the above-quoted answer, as later explained, and we need not consider that part of the ruling. While the trial court had considerable discretion in determining the admissibility of res gestae declarations, it was a clear abuse of discretion to strike the statement said to have been made by Gable immediately after the pile had fallen on plaintiff. Page v. City of Osceola,
[7] VI. Plaintiff complains of the court's refusal to permit him to amend his petition on the second day of the trial. The petition alleges that plaintiff's injuries are permanent, he suffered pain which will continue in the future, and loss of time and permanent impairment to his earning capacity. However, the petition goes on to itemize the damage at $162 for loss of time, $
The court might well have permitted plaintiff to amend. We have repeatedly held that to allow an amendment, especially one like this, is the rule and to deny it is the exception. Green v. Phoenix Ins. Co.,
Our decisions on the right to amend in a law action that has been remanded for new trial have arisen under section 11182, Code, 1939, which provides that the court may permit amendmentsat any time, in furtherance of justice. Rule 88, Rules of Civil Procedure, effective July 4, 1943, does not seem to affect materially the then existing practice regarding amendments after remand in a law action. It provides, "The court, in furtherance of justice, may allow later amendments * * *."
Plaintiff's remaining complaint has to do with the exclusion of evidence which would have been proper if plaintiff had been permitted to amend his petition in the foregoing respect and likewise need not be considered. — Reversed and remanded.
MANTZ, C.J., and BLISS, OLIVER, HALE, and MULRONEY, JJ., concur.
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