McClenahan v. Des Moines Transit Company

132 N.W.2d 471, 257 Iowa 293, 1965 Iowa Sup. LEXIS 577
CourtSupreme Court of Iowa
DecidedJanuary 12, 1965
Docket51582
StatusPublished
Cited by14 cases

This text of 132 N.W.2d 471 (McClenahan v. Des Moines Transit Company) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClenahan v. Des Moines Transit Company, 132 N.W.2d 471, 257 Iowa 293, 1965 Iowa Sup. LEXIS 577 (iowa 1965).

Opinion

*295 LaesoN, J.

— While servicing an advertising sign on the back of one of defendant’s buses, plaintiff was struck down and injured when the bus was suddenly moved by one of defendant’s employees. In his action for damages the trial court submitted the issue of lookout, contributory negligence, and alleged injuries to the jury. There was a verdict and judgment of $15,000 in plaintiff’s favor. In various ways defendant had asked the court to hold as a matter of law that there was no evidence of any actionable negligence against it, that plaintiff was guilty of contributory negligence, and that plaintiff had failed to prove any element of damage alleged. Thus we must now determine whether the trial court erred in overruling defendant’s motions and in submitting these issues to the jury.

It appears from the record that on the morning of May 28, 1963, at about 9:30, plaintiff, age 73, was pursuing his usual task in defendant’s bus yards of checking and replacing advertising signs on the buses-. As an independent contractor working for defendant by the hour, he was checking signs on the rear of buses when he came upon one needing replacement. He proceeded to change it and, while so doing, this bus was backed up “with no warning motor sign or anything”, striking him to the ground and pinning him under the motor extension back of the rear wheels. Plaintiff testified: “They did not have a person directing the driver from the outside on this particular day. When I walked up to the back of this bus the motor was not running, * * He said he was familiar with Diesel motors and knew the sound of them. He had heard the clash of gears around the yard, but did not hear it at this particular time.

He vaguely remembers being pulled from under the bus and rushed to a hospital. He testified: “I did not at anytime [prior to the accident] have any injury or damage to my ribs or chest” and “I had never had any fractured vertebras to my knowledge or pain in my back and I could walk perfectly” prior to May 28, 1963. He said: “I am walking with a cane now but I did not walk with a cane prior to this accident.” He had had no difficulty performing his checking of some 75 buses a day, and said; “To my knowledge I did not have any arthritic condition of the spine”, although sometimes in the morning he would have a *296 little pain in his left foot, which would leave after he walked a little.

When taken to the hospital he was in a coma, and things that occurred there were vague to him. After a couple of weeks he was transferred to Younkers Memorial for about four more weeks. He was a bed patient and said he had “terrific pain in my chest and back” and so informed the doctors. His chest pains continued, although now he can breathe easier. Since his hospital release he is able to walk a little with a cane, but cannot lift or carry anything without experiencing excruciating pain. He has been unable to straighten up,' and his weight dropped from 175 pounds to 134 pounds. He cannot drive a car and must now use a cab to bring groceries from the market six blocks away. He must also hire help to care for his lawn and hedge, and stated he has done no work since the accident.

I. It is the duty of the trial court to submit to the jury all issues presented by the pleadings upon which there is evidence tending to support them. Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 61 N.W.2d 696; Clark v. Umbarger, 247 Iowa 938, 75 N.W.2d 243. It is also true that, when considering defendant’s motions to direct, the evidence must be viewed in the light most favorable to the plaintiff, and every inference reasonably permissible must be carried to the aid of the evidence. Holloway v. Bankers Life Co., 248 Iowa 517, 527, 81 N.W.2d 453, and citations; Strom v. Des Moines & Central Iowa Ry. Co., 248 Iowa 1052, 1056, 82 N.W.2d 781.

II. The first issue raised by this appeal is whether there was sufficient evidence of defendant’s failure to keep a proper lookout for plaintiff when the bus was backed out of line for service. Under Iowa law the duty of a motorist to maintain a lookout is not statutory but is a common-law duty to exercise ordinary care under the circumstances. Miller v. Stender, 251 Iowa 123, 129, 98 N.W.2d 338; Law v. Hemmingsen, 249 Iowa 820, 833, 89 N.W.2d 386, 395. Appellant contends plaintiff’s evidence shows no breach of duty owed him. We cannot agree.

Although plaintiff was on defendant’s premises as an invitee, he was there for the mutual benefit of both parties, and *297 'tbe defendant owed him a duty not to injure him. by a hidden 'unexpected or unknown danger. True, plaintiff' was aware that buses were often moved around the'yard, knew -the sound of Diesel motors, was familiar with the gas and fumes coming from the exhausts; the -noise of the gears, and the increased speed of the motors before the bus was moved. He- was not familiar with the sudden start of a “dead” bus, and the jury could find this was such a start'. Under those circumstance's the law required ordinary care by the operator ‘ not ‘ to injure a person rightfully on the premises. Atherton v. Hoenig’s Grocery, 249 Iowa 50, 54, 86 N.W.2d 252, and citations; Rebmann v. Heesch, 227 Iowa 566, 576, 288 N.W. 695; 38 Am. Jur., Negli-génce, section 96, page 754. Thus, defendant had -the ditty to maintain-a “proper lookout” for plaintiff, whose presence was clearly authorized and whose presence should have been known to or anticipated by the bus driver at the time.

Generally speaking, “propér lookout”, when used in connection with' the operation of a motor vehicle, means the'duty of seeing'that which is clearly visible or which in the exercise ■of ordinary care would be visible. Ritter v. Andrews Concrete Products & Supply Co., 250 Iowa 297, 300, 93 N.W.2d 787. This court has also given the term a somewhat broader meaning. In Becker v. City of Waterloo, 245 Iowa 666, 673, 63 N.W.2d 919, 923, we said: “Proper lookout means being watchful of the movements of one’s own vehicle as well as the other things seen or seeable, and involves the care, prudeneé, watchfulness and attention of an ordinarily careful and prudent person under the circumstances.” In Devore v. Schaffer, 245 Iowa 1017, 1024, 65 N.W.2d 553, 557, 51 A. L. R.2d 1041, we pointed out with reference to the term “lookout” that it depends on the context and may mean “care to discover whether plaintiff was in' a place of safety from possible injury by the contemplated movement of the truck and trailer.”

We think such was the duty of the operator of- defendant’s bus, and from the evidence before it the jury could find he failed to perform that duty.

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Bluebook (online)
132 N.W.2d 471, 257 Iowa 293, 1965 Iowa Sup. LEXIS 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclenahan-v-des-moines-transit-company-iowa-1965.