Dulemba v. Tribble, 80.

• Decision Date: 06 June 1949
• Docket Number: No. 80.,80.
• Citation: 37 N.W.2d 894,325 Mich. 143
• Parties: DULEMBA v. TRIBBLE.
• Court: Michigan Supreme Court

325 Mich. 143

37 N.W.2d 894

DULEMBA

v.TRIBBLE.

No. 80.

Supreme Court of Michigan.

June 6, 1949.

Appeal from Circuit Court, Jackson County; John Simpson, judge.

Action by Frank Dulemba by his next friend, Michael Dulemba, against Clarence Tribble to recover for injuries sustained when plaintiff was struck by defendant's automobile while attempting to guide defendant in driving automobile onto a hoist in a gasoline filling station. Directed verdict for defendant and plaintiff appeals.

Affirmed.

Before the entire bench.

Dahlem & Dahlem, Jackson, for plaintiff and appellant.

Kleinstiver & Anderson, Jackson, for defendant and appellee.

DETHMERS, Justice.

Plaintiff was employed as an attendant in a gasoline station. Defendant drove his automobile to the station to have its hydraulic brakes repaired. Plaintiff's employer examined them outside the station and then turned the job over to plaintiff, telling him that either the fluid had leaked from the hydraulic system or the latter needed bleeding to remove accumulated air. Plaintiff testified that he examined the automobile, still outside the station, and found a little brake fluid present; that if there were any fluid to be seen there would still be a full brake, and that if the difficulty were due to air in the lines then pumping the brake pedal three or four times would stop a car going at a ‘slow gait’. Plaintiff further testified that he ‘knew the brakes were practically gone when the car came there’; that his employer told him defendant ‘didn't have any brakes on that car’; that he got in the car and manipulated the brake pedal and then told a bystander that he got no pressure when pumping the pedal; that he knew the brakes were in bad shape; that he knew that if the automobile were driven onto a hoist there was a possibility of its not stopping and that he might have to step in front of the car to stop it himself.

After such examination, and with such knowledge of the condition of the brakes, plaintiff told defendant to drive the automobile over a hoist located inside the station. Defendant maneuvered his automobile into a position directly in front of and about 35 feet from the entrance. The hoist was of a character such that safety required very accurate aligning of the car thereon. It was necessary and the customary practice for the attendant to place himself in the path of the car to guide the driver over the hoist. For that purpose plaintiff walked into the station and stood on a cross-bar at the center of the hoist, facing defendant's car. Defendant proceeded forward toward the entrance at a ‘creeping’ or ‘crawling’ rate of speed, plaintiff directing his progress to right or left by manual motions until defendant reached a point ten to fifteen feet from the entrance. It was necessary and customary for the attendant then to take a position in front of and at the far end of the hoist in order to continue guiding the driver. Consequently, plaintiff waved to defendant to come on it, told him to take it easy, turned to one side and stepped down off the hoist onto the floor next to it. Defendant's car meanwhile jerked forward to a speed of from five to seven miles per hour. Plaintiff then walked, with his back to defendant, from the center cross-bar along the right side of the hoist to a position opposite the front thereof and thereupon turned to his left and walked in front of the hoist. From the time he left the cross-bar until he placed himself in front of the hoist he never looked at defendant's approaching car. When plaintiff reached a point approximately at the center of the front of the hoist he turned to face defendant's car and found that it had then just about covered the hoist and was but four or five feet from him, coming too fast for plaintiff to get away. He just had time to holler ‘Stop’ and to jump up, whereupon, there being no device in front of the hoist to stop the car, plaintiff was struck and pinned against a bench, causing him the injuries for which this suit is brought.

The trial court directed a verdict for defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law in failing to maintain a lookout for defendant's car and in stepping in front of it without looking to see where it was or at what speed it was approaching.

Plaintiff contends that the question of his contributory negligence was one of fact for the jury. A considerable portion of his briof is devoted to the proposition that it was not negligent to stand on or in front of the hoist to guide the approaching automobile because such action was both necessary and customary. There is no evidence, nor could there well be, that it was necessary or customary for an attendant to step from a position of safety alongside the hoist to a position of danger in front of it without making any abservations of the approaching automobile or taking any precautions for his own safety Granting plaintiff's contention that he had a right to rely on the assumption that defendant would drive over the hoist at a slow rate of speed and in a careful and prudent manner, that right was not absolute so as to relieve plaintiff from the duty of taking heed for his own safety. Dahlerup v. Grand Trunk Western R. Co., 319 Mich. 96, 29 N.W.2d 156;Union Trust Co. v. Detroit, G. H. & M. Railway Co., 239 Mich. 97, 214 N.W. 166, 66...