Cramer v. Mengerhausen

• Decision Date: 04 June 1976
• Citation: 275 Or. 223,550 P.2d 740
• Parties: George D. CRAMER, Appellant, v. Dick MENGERHAUSEN et al., Respondents.
• Court: Oregon Supreme Court

Page 740

550 P.2d 740

275 Or. 223

George D. CRAMER, Appellant, v. Dick MENGERHAUSEN et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 7, 1976.

Decided June 4, 1976.

[275 Or. 224-A] Gerald R. Pullen, Portland, argued the cause and filed a brief for appellant.

James L. Sutherland of Frohnmayer & Deatherage, Medford, argued the cause and filed a brief for respondents.

O'CONNELL, Chief Justice.

This is an action to recover damages for personal injuries suffered by plaintiff at defendants' place of business. Plaintiff appeals from a judgment entered on a verdict in favor of defendants.

Defendants Mengerhausen and Lauber are partners doing business as O. K. Tire Store, Grants Pass, Oregon. Defendant Craven was their employee. The following is plaintiff's version of the facts. Plaintiff had brought his pickup truck to defendants' tire shop to replace the back tires with recaps. To put on the replacement tires, William Craven jacked up the back of the pickup and took off the two back wheels. In this operation, Craven shoved the jack underneath the bumper, but it appeared to the plaintiff that Craven had not shoved the jack far enough under the bumper. After the two back wheels were removed, Craven went underneath the pickup to change the spare. Plaintiff did not express to Craven his belief that the jack was not properly placed under the pickup. Plaintiff testified that he refrained from informing Craven of the dangerous condition because from past experience plaintiff had learned that in such circumstances young people do not take kindly to comments about the inadequacy of their workmanship. Craven, while under the pickup, bounced the spare tire up in the air with his knees in his attempt to place the spare in the carrying rack. Plaintiff noticed that the back end of the jack eased up, and he cried out 'it's going off the jack.' Plaintiff knew that there were no blocks on the front wheels and that the only thing holding up the pickup was the jack. When he saw the jack moving, he went over and tried to pull it back on the jack. In this movement he grabbed the back of the right fender and pulled backwards and upwards. He estimated that 90% Of his force was backwards and 10% Upwards. The pickup suddenly fell to the floor, injuring plaintiff. Craven, who was still underneath the pickup, was also injured.

In explaining more specifically the mishap, plaintiff testified that the pickup had not slipped off the jack at the time he grabbed the pickup, but the back-end of the jack moved up so that the two wheels of the jack were about one inch in the air and it was teetering back and forth. Seeing this, plaintiff moved over as fast as he could and yanked the pickup back as hard as he could. Plaintiff thought that he kept the truck on the jack two or three seconds. Plaintiff stated that he knew the pickup could slip because he had seen Craven put only a small portion of the bumper under the jack.

Craven testified that after making sure the jack was properly placed, he jacked the pickup off the ground and then got underneath the pickup to make sure it was in place. He stated that he was having only normal difficulty in replacing the spare tire and was getting ready to fasten it down when he noticed the truck falling. He saw it moving forward and his first thought was to get out from under the truck. He pushed out and sideways from under the truck but the bumper caught his left shoulder, breaking the clavicle.

Plaintiff alleged that defendants negligently failed to jack up the pickup in a safe manner and that plaintiff's actions were a foreseeable attempt to rescue defendant Craven from the danger thus created. Defendants alleged that plaintiff's injuries were caused by his own contributory negligence. The jury returned a verdict in favor of defendants, finding plaintiff seventy percent (70%) negligent and defendants thirty percent (30%) negligent.

[1,2] Plaintiff contends that the court erred in refusing to grant plaintiff's motion to strike defendants' allegations of plaintiff's contributory negligence. Defendants allege that plaintiff was contributorily negligent (1) in his 'attempt to grab the pickup while the same was slipping'; (2) 'in attempting to hold plaintiff's pickup when he knew or should have known he was incapable of doing so'; (3) 'in failing to warn William Craven of the position of the jack on the bumper', and (4) in 'pushing against the pickup and causing it to fall off the jack.' Plaintiff contends that the first, second and fourth allegations were not supported by the evidence, and that the third allegation should have been stricken because plaintiff had no duty to warn Craven of the impending danger. We are of the opinion that there was evidence from which the jury could conclude that plaintiff was contributorily negligent in conducting himself as described in specifications numbered (1), (2) and (4). However, we hold that specification number (3), charging plaintiff with contributory negligence 'in failing to warn William Craven of the position of the jack on the bumper,' should have been stricken and that the failure to do so constitutes reversible error.

Plaintiff had no duty to warn Craven of the pending danger caused by the improper use of the jack. There is no duty to aid one in peril in the absence of some special relation between the parties which affords a justification for the creation of a duty. ¹ There was no relation of such a character between plaintiff and defendants in the present case. Although the cases which hold that there is no duty to help one who is in danger involve the liability of a Defendant who fails to act, we can see no difference in the applicability of the principle where the defendant seeks to bar recovery because the Plaintiff fails to act. The failure to strike specification number (3) was error.

Plaintiff further assigns as error the failure to give his requested instruction on the doctrine of res ipsa loquitur. The jury returned a verdict which included a finding that plaintiff was seventy percent negligent and defendant thirty percent negligent. The verdict demonstrates that the jury drew an inference from the circumstances of the case that defendant was negligent. An instruction on the doctrine of res ipsa loquitur would tell the jury that it could draw an inference of negligence from the facts of the case. Since it is demonstrable that the jury did, in fact, draw such an inference, the failure to give the instruction was not prejudicial to plaintiff.

Since the question of the applicability of the res ipsa doctrine will undoubtly be raised if the case is retried upon remand, it is advisable that we dispose of that question at this time. We think that a vehicle resting upon a jack would not ordinarily slip off the jack in the absence of the negligence of the person who employed the jack. In the present case, if plaintiff had not participated in the event by attempting to prevent the truck from slipping off the jack, the res ipsa 'doctrine' would clearly be applicable. Defendant argues, however, that plaintiff's participation in the event renders inapplicable the res ipsa doctrine. We have made it clear that the mere fact of the plaintiff's participation in the event does not necessarily exclude the operation of the res ipsa principle. Thus in Powell v. Moore, 228 Or. 255, 268, 364 P.2d 1094, 1100 (1961), we said:

'* * * (E)ven where there is some evidence that plaintiff's failure to exercise care in the use of defendant's equipment was a contributing cause producing the injury, the doctrine is not excluded as a matter of law; rather the case is to be submitted to the jury with proper instructions permitting the jury to draw the inference of defendant's negligence if it finds that plaintiff by his own conduct was not responsible for causing his injury.' (Citing cases.)

The same thought is expressed in Prosser, The Law of Torts, p. 225 (4th ed. 1971):

'* * * Even where the plaintiff's own contribution is left in doubt by reason of conflicting evidence, or in shared control of the situation, it is still possible to apply the principle under proper instructions to the jury.'

In the present case the jury could reasonably find that although plaintiff participated in the event in which he was injured, his conduct was not a substantial factor in causing the truck to fall.

Even if the jury were to find that plaintiff was negligent and that his negligence contributed to his injury, plaintiff's negligence does not preclude the operation of the res ipsa doctrine because, under the comparative negligence system, the jury could infer from the circumstances that the defendant's negligence exceeded the plaintiff's negligence, thus permitting plaintiff to recover in spite of his contributing negligence. ² Whenever the jury could reasonably find that the defendant's conduct was a substantial factor in causing the plaintiff's injury and that the event is of a kind which ordinarily would not occur in the absence of the defendant's negligence, the doctrine of res ipsa loquitur applies even though plaintiff's negligence also contributed to his injury. ³

In the event of a retrial of this cause, plaintiff is entitled to an instruction consistent with the foregoing explanation of the operation of the res ipsa doctrine.

Error is also assigned on the ground that the trial court excluded a Safety Inspection Report of the Workmen's Compensation Board. Included in the report under the heading 'Brief Description of Accident,' was the following comment:

'From viewing scene of accident, talking to injured, partner & Co. & equipment it is determined that--

'Mr. William Craven, an employee of Dick & Don's OK Tire Store for a period of 2 months as a tire dismount did receive injuries to his left clavical (broken) when a pickup truck fell off jack while he was under it. Mr. Craven stated that he was pushing up and down on back of truck trying to...