Appeal from District Court, Jasper County; Frank Bechly, Judge.
Alice Boles, as administratrix of the estate of Charles W. Boles, commenced this action against the Hotel Maytag Company to recover damages on account of fatal injuries sustained by said decedent on the night of January 9, 1932, when he fell into the pit of the freight elevator. Defendant answered, denying that it was responsible for the death of Boles, alleging that he was guilty of contributory negligence. At the close of the testimony defendant made a motion for a directed verdict, which motion was sustained, and plaintiff appeals. Opinion states the facts.
Campbell & Campbell, of Newton, for appellant.
Huebner & Huebner, of Des Moines, M. R. Hammer, Jr., of Newton, and H. B. White, of Des Moines, for appellee.
This is the second time that this case has been before this court. Boles v. Hotel Maytag Co., 218 Iowa 306, 316, 253 N.W. 515.
The writer of this opinion found it necessary to dissent in the former appeal. But when the opinion was adopted by a majority of this court, it became the law. The only right the minority has is to express its views, which right was exercised in this case. See dissenting opinion, 218 Iowa, page 317, 253 N.W. 520.
If this case was here on the record now before us as an original submission, the writer would find himself again compelled to dissent, but with the law of the case established by this court, it must be followed.
No good could be accomplished by repeating the facts and circumstances covering the claims made in this case. They are adequately and fully set out in the original opinion.
In the original submission this court held that appellant's decedent was guilty of contributory negligence as a matter of law.
The first hurdle that confronts the appellant is to show that she has produced sufficient new evidence to escape the conclusion reached in the former opinion. To do this, she relies upon two new theories. First, there is evidence in this record that Charles W. Boles was hard of hearing and that at the time that L. J. Dietz, the engineer of the hotel, told him that the safety device on the east door was out of order, the elevator was running; that on account of the fact that Boles was hard of hearing and because of the noise that was going on at the time that Dietz told him the safety device was out of order, it was for the jury to say whether or not Boles heard what Dietz told him on that occasion. There might be something to this claim if it were not for the fact that Dietz testified that at the time that he told Boles the safety device was out of order he (Dietz) pointed to the safety device, which was in plain view, and that at that time Boles was looking in that direction. The undisputed record shows that the safety device was so dismantled that even the ordinary layman would have known it was out of order by simply looking at it, whereas Boles, who was an expert electrician, would have had no trouble in ascertaining the fact that the device was not working.
The other evidence which the appellant relies upon is the testimony of the witness Frank Siddall, as follows:
" Mr. Boles went over to the west door and closed it and then he told me to go over and close the east door so we could move the elevator."
It must be kept in mind that if the safety device with which the elevator was equipped was in working order, the platform of the elevator could not have been moved if the west door was open, nor could it have been moved if the safety device on the east door had been in working order if that door was open. The inference which the appellant would have drawn from the testimony offered is that appellant's decedent did not know that the safety device on the east door was out of order, for if he had known he would not have said to Siddall, after closing the west door, " Close the east door so we could move the elevator," for the elevator could have been moved without the door being closed, the safety device not being in working order. The trouble with appellant's theory is that the elevator should not have been moved, even if the safety device on the east door was out of order, with the east door open, because there was nothing to prevent any one from falling into the pit if the east door was open and the platform of the elevator was not there, there being no guard on the east door. So it is just as reasonable to believe that Boles was closing the east door to prevent any one from falling into the elevator pit, before he moved the platform of the elevator, as it is to believe that he was closing it with the thought in mind that it was necessary to do so before the elevator platform could be moved.
In view of the opinion of this court in the first case, we find no evidence offered here which ...