Opinion
No. 21526.
June 4, 1951.
APPEAL FROM THE GRUNDY CIRCUIT COURT FOR GRUNDY COUNTY, V. C. ROSE, J.
Nolan M. Chapman, Don Chapman and Nolan M. Chapman, Jr., all of Chillicothe, for appellant.
Cross Cross, Lathrop, and White Hall, Kansas City, for respondent.
The respondent, as plaintiff in the trial court, filed this action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, appellant here. The verdict and judgment were in favor of the plaintiff in the sum of $2750. The defendant appealed.
The gist of the petition is that the defendant requested the plaintiff to check the generator in defendant's automobile, and while the plaintiff was so doing, the defendant, without warning, carelessly and negligently started the motor, causing plaintiff's hand to be mangled and crushed "by the revolving fan belt wheel."
The answer, in effect, denied the allegations of negligence, pleaded assumption of risk, and also contributory negligence in that the plaintiff was at the time operating his automobile repair shop and had the automobile there in his custody and control; that whatever defendant did was done under the direction of the plaintiff and at his request, and that the plaintiff voluntarily and unnecessarily placed his hand on the fan belt and near the blades of the fan of the motor when he knew, or by the exercise of ordinary care for his safety should have known and realized, the danger.
Plaintiff had worked as an automobile mechanic since 1942 or 1943, and in 1947, opened a shop of his own, specializing in electric refrigerators and in generators and ignition parts of automobiles. He had rented quarters from the defendant near the latter's place of business. On the day in question defendant delivered his car to the plaintiff to repair the starter. This repair was completed in the morning, after which plaintiff reported to the defendant that repairs were also needed on the generator, which defendant authorized. During the afternoon plaintiff cleaned and replaced certain parts of the generator. The defendant came out to where the plaintiff was working on the car. The plaintiff tightened the fan belt. Then desiring to test the generator and to see if it charged the battery, and his clothes being greasy, plaintiff requested the defendant to get into the car and start the motor. The defendant got in the car and sat in the driver's seat. The hood of the car was up, having been raised from the front, and defendant could not see the plaintiff's fingers, hands, or any part of his body except his back as plaintiff worked under the hood. Defendant started the motor as requested by the plaintiff and the ammeter on the dash showed the generator not charging.
Plaintiff testified in direct examination:
"A. I put the generator on the car and I was around the grease and I told him to get in the car and start it. * * *
"Q. Go ahead, tell the last thing you said — you said you asked him to start the motor? A. That's right.
"Q. Go ahead? A. And the generator did not generate — lots of times when you have them apart they lose connection — don't polarize — so I told him I would have to take a pair of pliers and polarize the generator and it shorted across and the generator went to working and I had him shut it off, and I walked to the side where he was sitting and the generator was charging, I let it run a minute and told him to turn it off and I would restart it to see if it would take hold, I told him it was going to be all right `shut it off and I will finish'.
"Q. What else was you going to do under the hood after you told him to shut if off? A. I told him to shut it off and that I would finish, the window was down and my face wasn't a foot from him, and he was looking at me, we wasn't that far apart (indicating) he was sitting in the seat, and the belt was not tight enough and I had to tighten the belt and I had my head down under the hood and I heard him start it, I gave a jump and it still got this finger.
"Q. Tell this jury at the time or immediately before he put his foot on the starter that last time, did he give you any notice or warning he was going to start it? A. No sir.
"Q. Did you or had you told him to start that motor at that time? A. No sir.
"Q. Did you or not have any indication he was going to start the motor or he was going to start it when you had your hands on that generator belt? A. No sir."
On cross-examination plaintiff testified:
"Q. All right, just tell this jury what you did there with respect to Mr. Shields? A. Well I was greasy and dirty and I didn't want to get in the car and get it dirty, I asked him if he would start the motor for me to see if the generator would work, so he started the motor and the generator did not take hold, and I told him I would have to take the pliers and polarize the generator and it shorted across and I went to where he was and the generator was charging and we let it run a minute and I told him to shut it off and started it again and it took hold and I told him to shut it off and I would finish, which he did, and I went back, and I didn't have the generator band on, I wanted to put that on and I seen I had my tension on my belt a little too tight, I wanted to let it off a little, and I was letting it off and I heard him hit the starter and I give a jump or it would got my whole hand.
"Q. He got in and started the generator at your direction and request? A. Twice.
"Q. Well Mr. VanDeVenter you could have started the motor and looked at the ameter without having Mr. Shields do it, could you? A. I could if I wanted to grease up his car.
"Q. Couldn't you have done it without getting in the car? A. You can.
"Q. And you did not have to have Mr. Shields get in that car in order for you to test this generator, did you? A. No, I don't think so.
"Q. You could test the generator, placed it back in and tested it and determine whether it was charging or discharging yourself without asking Mr. Shields or anyone else to get in the car and start the motor? A. I could, but it is not near as easy.
"Q. Could you have done that? A. I know if you want to reach down here and get a button and over here and get the carburator and regulate the engine.
"Q. You could do all that in making these repairs, you could done it that way? A. No sir".
It is undisputed that at the time in question the automobile was in the custody and control of the plaintiff for the purpose of repairs; that the defendant was not in plaintiff's employ; that defendant for 25 years had owned and driven automobiles and for six or more years was employed in driving trucks for others; that defendant did not direct the plaintiff or make any suggestions as to how plaintiff should make the repairs; that defendant got in the car at plaintiff's request and was directed by plaintiff to start and stop the motor, before and at the time the generator was "polarized"; that defendant later paid plaintiff for the repairs. It is disputed that just before the injury, the plaintiff finally directed defendant to stop the motor while the plaintiff finished the job. Plaintiff's further evidence is that after finally directing the defendant to "shut off and I would finish", and after he resumed working under the hood, defendant again started the motor, causing the plaintiff's first and second fingers of his left hand to be seriously injured by the blades of the fan, when plaintiff was testing the tension on the fan belt which also revolved the generator. Part of plaintiff's first finger was cut off. Later motor had to be amputated, and later still, more was removed. The second finger was badly injured. On account of the nature of the points here made it is not necessary to set forth the defendant's evidence further than the references made to the same.
Defendant first contends that it was error for the trial court to overrule his motion made for a directed verdict at the close of plaintiff's evidence, and again at the close of all the evidence for several reasons. Defendant, by proceeding with his evidence after the close of plaintiff's evidence, waived his right to complain of the ruling of the court on the motion for a directed verdict made at that time. Porter v. Equitable Life Assurance Society, Mo.App. 71 S.W.2d 766, 772.
Defendant asserts that plaintiff's evidence showed that defendant was merely a gratuitous agent or servant of the plaintiff under the circumstances, and was, therefore, liable only for gross or willful negligence and wanton conduct not disclosed by the evidence; that defendant's liability was only such as existed in the case of a gratuitous bailee or a hostess serving guests; that it is similar to the duty of a landowner to a licensee which is limited to willful, wanton affirmative acts leading to injury with knowledge of the danger to the person injured; that the reason is that the licensee is on the premises of another for the former's own benefit, convenience or pleasure; that it is the same principle as applies to a gratuitous bailee.
Defendant further asserts that under the plaintiff's evidence, plaintiff, as a matter of law, assumed the risk of injury of which he complains and cannot recover; that being an expert he had superior skill and knowledge of the danger and defendant had a right to expect him to use the same to avoid injury to himself; that if plaintiff voluntarily exposed himself to known dangers and was injured he cannot recover even though the same may be attributable to the negligence of another, and even though plaintiff himself was at the time in the exercise of due care for his own safety.
The defendant's third point is that the motion for a directed verdict at the close of all the evidence should have been sustained because, as a matter of law, plaintiff was guilty of contributory negligence, and that ordinary care on plaintiff's part would have required him to ascertain whether or not defendant understood he was not to start the motor while the plaintiff placed his fingers on the fan belt; that having completed the polarizing of the generator, he should have notified the defendant that he was going to place his fingers on the fan belt to test the tension; that plaintiff thus changed his position from one of safety to one of danger, without notifying the defendant, of whom he claims a duty of due care, of which change the defendant had a right to notice.
The defendant's next point is that there should have been a directed verdict for defendant because the petition did not state facts sufficient to constitute a claim against defendant upon which relief could be granted. He argues that the petition fails to allege any duty on defendant's part to warn the plaintiff, or that any warning was necessary, or that defendant, in the exercise of ordinary care, could have known that plaintiff's hand was in a position of danger if the motor were started; that matters necessary to prove must be alleged. Defendant's 17 objections to Instruction A, given for plaintiff, will be noted later.
The substance of the allegations of negligence in the petition considered as true for the purposes of legal sufficiency, is that the defendant requested the plaintiff to check the generator in the defendant's car; that plaintiff proceeded to do so and while inspecting it and working on it, the defendant, without notice or warning, carelessly and negligently started the motor, causing plaintiff's left hand to be injured by the "revolving fan belt wheel". It is true a motion was filed to dismiss the petition because it did not state a cause of action. The record shows no ruling on that motion. We think that, in the absence of a motion to require a more definite statement or for a bill of particulars of any matters contained, the petition was sufficient as against a general attack that it had failed to state a claim upon which relief can be granted.
Whether the defendant, when complying with the plaintiff's request to get in the car and start the motor so plaintiff could see if the generator were charging, became a gratuitous agent of the plaintiff, a bailee, or licensee, and thereby limited to the liability of such, the fact remains that he did elect to comply and undertook to perform certain acts requested by plaintiff, and in doing so, it became and remained his duty to act carefully. "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all". Berry v. Emery, Bird, Thayer Dry Goods Co., 357 Mo. 808, 211 S.W.2d 35, 41. Whether defendant exercised ordinary care at the time and under the circumstances then existing was a question for the jury. Philippi v. New York, C. St. L. R. Co., Mo.App., 136 S.W.2d 339.
It is true that the plaintiff was an independent contractor at the time and place in question. Stein v. Battenfield Oil Grease Co., 327 Mo. 804, 814, 39 S.W.2d 345. He not only was working on the defendant's car to accomplish the particular work for which he, as an expert mechanic, was especially engaged by the defendant, but had the car in his own custody and on his own premises and wholly under his own control as far as the manner and method of his work were concerned. He is presumed to have known the location and function of the various mechanical parts of the car and the danger of proximity to any of the same when the motor was started, or was running. Those dangers were obvious to him, and he assumed the risk, if any, of working among those parts when the motor was not running or when started by him or by his direction, or with his prior knowledge. It is further true that the defendant's presence at the driver's seat in the automobile and proximity to the starter was known to plaintiff, as the plaintiff himself had requested the defendant to take that position and, at plaintiff's request, defendant had twice started and stopped the motor. But it cannot be said, as a matter of law, that plaintiff assumed the risk that the defendant, an experienced driver of automobiles and trucks, after being told by plaintiff to stop the automobile while plaintiff finished the job, and after seeing plaintiff resume his work under the hood of the car, would start the motor. We cannot declare that to be a circumstance which was obvious to the plaintiff, the risk of which he assumed.
Nor can we find, as a matter of law, that plaintiff was guilty of contributory negligence. It must be considered a fact that plaintiff, standing close to the front window of the car, with his head near to that of the defendant, told the defendant to stop the motor while plaintiff completed the job. The inference is strong that the defendant heard that instruction. Plaintiff, in defendant's view, returned to the motor and began working under the hood. He had a right to rely upon the presumption that the defendant, who owned and had driven the car, and who was interested in the success of the job, would not start the motor while plaintiff was working on it after having just been positively directed not to do so. Having resumed work on the generator while the motor was stopped, it was not negligence, as a matter of law, for the plaintiff to place his hands on various parts of the machinery related to the generator, nor to do so without notifying the defendant; nor was it negligence, as a matter of law, for plaintiff to fail to inquire of the defendant if the instructions given were understood.
Defendant complains of the plaintiff's Instruction A. In substance, it instructed the jury that if it found and believed from the evidence that on the day in question, plaintiff, at defendant's instance and request, was engaged in doing certain work, "as detailed in the evidence", upon defendant's car; that while plaintiff was so engaged and was working at or near the generator and generator belt, defendant negligently and carelessly, without notice or warning to plaintiff, started and put in movement the operation of the motor and fan belt, and as a direct result, without fault or neglect on plaintiff's part, the generator and belt were caused to and did come in contact with and caught the fingers of plaintiff's left hand, injuring him; then the verdict should be for the plaintiff against the defendant. The second paragraph of the instruction was that if the jury found defendant did so start the motor and generator belt while plaintiff was at work thereon and without notice, and if the jury found that the defendant was guilty of negligence in so doing, and that such negligence directly and proximately caused the injuries, then plaintiff did not assume the risk of such injury, and defendant could not defend himself in this action on the ground that plaintiff assumed such risk.
Defendant objects to the above instruction on numerous grounds. He contends that the only act of negligence stated is the starting of the motor by the defendant while plaintiff was working at or near the generator and generator belt, without notice or warning to plaintiff of his intention to start the motor, and the jury was not required to find any duty on defendant's part to give such notice or warning, nor that the defendant had knowledge, actual, or constructive, that plaintiff's hand was in a position of danger, nor that the starting of the motor without warning would result in plaintiff's injury. He further complains that the instruction is not based on the evidence which showed the defendant had no reason to anticipate danger to plaintiff by the starting of the motor and, therefore, defendant was under no duty to give any notice to the plaintiff of his intention to start the motor; that the instruction in effect declares, as a matter of law, that defendant's failure to give plaintiff any notice of his intention to start the motor was negligence; that the instruction fails to require the jury to find that the starting of the motor by defendant while plaintiff was working at or near the generator and belt without notice was negligence.
Defendant also asserts that the instruction invades the province of the jury in that it assumes defendant's negligence by not predicating same on defendant's duty to give warning with knowledge that plaintiff's hand was in a position of danger. He says that the instruction further assumes that the plaintiff, working on or near the generator belt, was in a position of danger, and that plaintiff had no knowledge that defendant was going to start the motor of his car; that defendant had knowledge that plaintiff's hand was in a dangerous position when the motor was started, and that plaintiff was without fault or neglect on his part.
Further objection is made that the instruction broadens the issues made by the evidence, ignores the defense of contributory negligence and assumption of risk, ignores defendant's evidence tending to show plaintiff knew the defendant was going to start the motor and did not need any notice or warning; that the instruction authorizes a verdict and should have contained all of the issues on all phases of the evidence; that it did not require a finding that the acts of negligence hypothesized proximately caused the injury to plaintiff, nor that plaintiff was without knowledge that defendant was going to start the motor, a fact necessary to the duty of the defendant to give notice or warning of his intention to start the motor.
It is further contended that the second paragraph of the instruction assumes that when defendant started the motor without notice to plaintiff, the plaintiff's hand was in a position of danger, and assumes that the starting of the motor and generator belt while plaintiff was at work thereabouts, without warning, was negligence; that the part pertaining to assumption of risk broadens the issue made by the pleadings, is not based on evidence, and is confusing and misleading; that it fails to require the jury to find as a predicate of defendant's liability in starting the motor without notice, that the defendant had knowledge that plaintiff's hand was in a position of danger; that such paragraph relative to assumption of risk was erroneous because such a defense is available even though the risk assumed is alleged to have arisen from the negligence of the defendant, and the instruction prevents the jury from considering a proper issue in the case; that the second paragraph is in conflict with defendant's Instruction 7, and is confusing. As to the last point appellant fails to set out therein or in his argument wherein Instruction A was in conflict with defendant's Instruction 7, or is misleading and confusing, and we need not consider it. As to the other objections noted to Instruction A, we find that under the record the instruction is not vulnerable to any of the points made.
In his final Points 22 and 24, defendant makes the further assertions that the court should have sustained the motion for new trial because the evidence wholly fails to show facts constituting a claim against defendant; that the verdict of the jury was against the evidence and the law; that the judgment should be reversed because the defendant was entitled to a judgment as a matter of law; that a miscarriage of justice has resulted by the judgment. From what we have said on the other points involved, it follows that Points 22 and 24 should be overruled. Judgment affirmed.
All concur.