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 drugstore. 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 drugstore building she relied upon the doctrine of res ipsa loquitur. The defendants denied that they were guilty of any negligeh.ee 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 returnеd a verdict for plaintiff against the lessees only, in the sum of $8687.15, and the latter appeal, with this statement of four errors: “(1) that the court erred in overruling defendants’ motion for directed verdictmade 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 *370 jury was so excessive tliat it could only be tbe result of passion and prejudice.”
Rule 344(a) (3), R. C. P., 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,
I. The status of the ease 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.,
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 drugstore 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 holе. 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.
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II. .Res ipsa loquitur is a name for a legal principle Avliieh 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 v. City of Ottumwa,
III. Defendants’ evidence consisted of the manner of installation of the glass panels, their genеral 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 seventeen 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 three feet high and seventy-five 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 5 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 mould-ing at one end which wás 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 wеre often cleaned and washed by schoolboy 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 fhere 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 drugstore. 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 *373 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 per cent between the readings at the airport and the corner at Lubin’s drugstore because of frictional differences and оbstructions. 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 recorded by him at the .airport.
Four old settlers in Iowa City testified as to the wind on May 5, 1950. Two of them said they could not remember a stronger wind. One of defendants’ witnesses, S.- T. Morrison, who was seventy-two years old and who had lived in Iowa City all his life, said: “I have seen other winds in this area which I thought were harder, but not of as long duration.” Dean Teeters, who 'had spent fifty-six of his eighty-four years in Iowa City, testified for defendants and he said when he was mayor (1943 to 1947) they often had to contend with trees blowing over and blocking traffic. Of the wind on May 5, 1950, he said: “We may have had windstorms in Iowa City during my time of substantially the same force, but I don’t remember any windstorm blowing continuously for such a long period.”
Evidence of windstorm damage was introduced, presumably io show the intensity of the wind on the fifth of May. Such evidence wаs probably admissible, but it would seem it would have little probative value unless it was confined to similar occurrences-as the one involved or, if not so confined, that the conditions were substantially the same. 65 C. J. S., Negligence, section 234(3) ; DeCicco v. Marlou Holding Co., 137 N. J. L. 186, 188, 189,
Here there is not any evidence that the May 5 wind blew out *374 any other plate glass in Iowa City. In fact there is no evidence that it blew ont any glass in the business section of the city. The manager and a glazier for the Pittsburgh Plate Glass Company in Iowa City testified that some large plate glass in the business section shifted and later had to be reset. The glazier said two glasses went out of the dоors at the Kelley Motor Company and one out of the transom at the Iowa State Bank & Trust Company. He did not know whether these glasses were blown out or the doors and transom slammed in the wind, shattering the glass. He testified he was able to replace these glasses on May 5, finishing with the transom in the bank building about four o’clock in the afternoon. He said he replaced a great deal of window glass in the residence section during the two or three days following May 5, but thе record is silent as to whether any other plate glass had to be replaced on, or during a few days after, May 5. The glazier testified that window glass is thinner than plate glass and it is set in putty. They both said after every windstorm they had numerous calls to replace broken glass.
The contractor who installed the Lubin store front testified the method of installation was, and had been for at least seventeen years, the approved method of installation of plate glass. He further said he installed the large display window (seven feet high) just below the transom panels in exactly the same manner as the smaller transom panels, with metal clips at the same intervals, etc., and this glass was of the same thickness as the transom panels. It is somewhat significant that the wind, which witnesses described as “steady”, did not blow out the display window or indeed many other plate glass display windows similarly,installed in this approved method and presenting a more vulnerablе surface to the wind than the transom panels.
The rest of defendants’ storm-damage testimony consists of branches of trees blown down, a few trees blown over — one with a partially rotted trunk — some composition shingles on a new house curled up, a sign 20 by 7 feet installed on the roof of a three-story building blown over, and the F.M. radio tower installed two or three years before on the roof of the four-story college engineering building blown over. There is no testimony as tо the manner in which the radio tower was fastened to the roof. Tt blew over *375 in the morning before the wind velocity at the airport exceeded 60'm.p.h. Two other radio towers located outside Iowa City were undamaged.
We hold the trial court was right in not directing the verdict for defendants at the close of all the testimony. There was evidence of one reading of wind velocity on the day of the accident at the airport a mile outside, of town which wаs slightly higher than any previous reading at the airport since 1941. But some of defendants’ own witnesses said they could remember winds in Iowa City of as great or greater force. Plaintiff and Miller testified there was a wind but they had no difficulty in walking. It was the duty of defendants who controlled the building to take into consideration the effect of such winds as are likely to occur in that area. Of course defendants are not required to guard against extraordinary manifestation of nature, which could not reasonably be anticipated or foreseen, or an act of God. Inquiring as to past events is proper in determining what should have been anticipated. A wind that is slightly higher than any recorded in the past nine years and higher than any that a few residents of the area could ever remember does not establish that wind as an act of God as a matter of law.
IV. Defendants’ evidence falls far short of rebutting as a matter of law the inference of negligence permitted under plaintiff’s prima facie case. In Feeney v. New York Waist House,
In Sinkovitz v. Peters Land Co.,
The defense that an injui’y was the result of an act of God must be specially pleaded. 65 C. J. S., Negligence, section 197. And, as stated in 65 C. J. S., Negligence, section 207, page 964: “Defendant has the burden of proving all issues raised as a mаtter of affirmative defense, such as that an act of God was the proximate cause of the injury.”
Seldom does a defendant having the burden of proof on an issue establish it as a matter of law. Maland v. Tesdall,
The permissible inference of negligence which the jury was entitled to find from plaintiff’s prima facie case could only be rebutted by evidence establishing that the wind was of sufficient force to constitute an act of God and also this act of God was the sole proximate cause of the injury. * * it is elementary and well settled that the act of God must be the sole and proxi *377 mate cause of the injury” (1 C. J. S., Act of God, page 1425) in order to discharge defendants from liability. See also 65 C. J. S., Negligence, section 115.
Defendants in effect argue their evidence was so strong that it established as a matter of law, first, that the wind was of such force that it constituted an act of God, and second, assuming defendants’ negligence — pеrmissible under plaintiff’s prima facie case — that this negligence did not concur with the act of God to cause plaintiff’s injury. We hold it failed to establish such facts as a matter of law; that the court was right in submitting the issues to the jury. Long v. Crystal Refrigerator Co.,
Y. Defendants’ exceptions to the instructions consist of ten numbered paragraphs. In the first paragraph defendants except to the giving of all of the instructions on the ground its motions for directed verdict should have.been sustained. In the succeeding paragraphs specific objections to certain instructions are made “for the reasons heretofore urged” and certain other objections. In paragraph 7 exception is taken to instruction 11 “for all of the reasons heretofore urged” and for the additional reason that “res ipsa loquitur has no place in the submission of this cause under the record made”; and that the record evidence fails to exclude “every other reasonable hypothesis or explanation of the happening other than that of [defendants’] negligence.”
In defendants’ argument here they complain that in instruction 11 where the court told the juxy the defendants would, under certain circumstances, have the duty to go forward with their evidence to rebut the inference of negligence, the court in effect placed on defendants the burden of proving their freedom from' negligencе. The complete answer to defendants’ argument is that the complaint that is here made is not within the objections or exceptions made before instruction 11 was given to the jury. The same can be said with regard to defendants’ contention that instruction 11 was confusing and “permitted guess and conjecture as to its meaning” — complaints which are made for the first time on this appeal. Rule 196, R. C. P., provides an exception to an instruction must specify “the matter objected to and on what
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grounds” and “no other grounds or objections shall be asserted, thereafter, or considered on appeal.” Defendants took no exception to the contents of the instruction. Actually defendants’ objection to instruction 11 was a mere continuation of their contention made in their motions for directed verdict: that the doctrine of res ipsa loquitur was not applicable to the case- and the instruction should not have been given because the verdict should have been directed in favor of defendants.. Such an exception would not present any issue for review as to the correctness of the contents of the instruction. Nichols v. Kirchner,
VI. Defendants argue they were entitled to a directed verdict on the ground plaintiff was contributorily negligent as a matter of law “in voluntarily placing herself in a position of danger.” This is not listed in defendants’ statement of errors relied uрon for reversal but evidently defendants feel the asserted error is presented because it was a ground of their motions for directed verdict. Without reviewing all the evidence again, we hold there is no merit in the argument. This ivas not a day of great catastrophe in Iowa City. It was a windy day but winds are not unknown to Iowa. As far as the record shows it was a day of business as usual. The stores were open. Customers came to the stores, rode in plaintiff’s elevator and presumably drank coffee at Lubin’s and ate.lunch at Whetstone’s — at least that is where plaintiff lunched. We cannot believe Lubin’s, who were presumably open for coffee business, can be very serious in their contention that a prospective customer was guilty of contributory negligence as a matter of law because she walked to their store to buy a cup of coffee.
VII. Finally, defendants contend the verdict was SO' excessive that it can only be the result of passion and prejudice and the trial court should have granted its motion for new trial on that ground. The injury consisted of complete severance of the Achilles tendon of plaintiff’s .left heel, two other lacerations in the region of her left ankle, and six lacerations of the calf of her right leg. She was in the hospital five days and had her foot in a cast for about a month and she used crutches for about two months. She said she suffered much pаin at the time of the acei- *379 dent and still suffered pain, and tbe doctor said he' would presume the injury would be painful but he could not say how long the pain would last, but some slight pain could last for years. She still limped, eight months after the accident, and had difficulty going down steps. The doctor felt she would have some permanent disability. Plaintiff and her doctor said she could not dance and the doctor said she would not be able to do work requiring her to be on her feet fоr excessively long periods of time.
The evidence of plaintiff’s injury, the pain and suffering she endured, and might endure in the future, and the continuing nature of her disability together with the doctor bills in the sum of $311.50 and the hospital bills in the sum of $102.50. and loss of wages (approximately $264) would warrant a substantial award of damages. We hold the verdict rendered was not-so excessive as to shock the judicial conscience. Christensen v. Boucher,