Ellmaker v. Goodyear Tire & Rubber Co.

• Decision Date: 07 October 1963
• Docket Number: No. 23824,23824
• Citation: 372 S.W.2d 650
• Court: Missouri Court of Appeals
• Parties: Merrie Dean ELLMAKER, Plaintiff-Respondent. v. The GOODYEAR TIRE & RUBBER COMPANY, a corporation, and William T. Buckner, Defendants-Appellants.

Page 650

372 S.W.2d 650

Merrie Dean ELLMAKER, Plaintiff-Respondent. v. The GOODYEAR TIRE & RUBBER COMPANY, a corporation, and William T. Buckner, Defendants-Appellants.

No. 23824.

Kansas City Court of Appeals, Missouri.

Oct. 7, 1963.

John M. Kilroy, John R. Caslavka, Kansas City, Ike Skelton, Lexington, for appellant.

Robert S. McKenzie, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, William Aull, Jr., Aull & Aull, Lexington, for respondent.

CROSS, Judge.

Plaintiff Merrie Dean Ellmaker maintains this suit to recover damages for the wrongful death of her deceased husband, James Robert Ellmaker. Defendants Goodyear Tire & Rubber Company and William T. Buckner have appealed from a judgment adverse to them entered on a jury verdict awarding plaintiff damages in the sum of $13,500.00.

When this suit was originally filed, Ernest R. Kohlstaedt was named as a third defendant, but died during pendency of the action and Ella Kohlstaedt, administratrix of his estate, was substituted as party defendant in his stead. The jury in returning its verdict found the issues in favor of the substituted defendant and against plaintiff. No appeal has been taken from the judgment entered on that phase of the verdict.

The decedent came to his death by a tragic incident occurring on October 27, 1960, in Lexington, Missouri. The essential facts and circumstances leading to the casualty are here set out.

At the time of and prior to his death, decedent operated a Sinclair service station in Lexington, Missouri, where he resided. Defendant Goodyear Tire & Rubber Company, a foreign corporation, owned and operated the 'Goodyear Service Store' in Lexington, an establishment which sold tires, batteries and other automotive equipment, at both wholesale and retail, and rendered service in connection therewith. Defendant Buckner was an employee of Goodyear, and managed its Lexington Store. Buckner also resided in Lexington.

The Goodyear store is located and fronts south on Main Street in Lexington. Main Street runs east and west. In the extreme rear of the store, there is a basement room which is used as a service garage or tire changing shop and for storing tires. This service area opens to the north and faces upon a public alley running east and west. The vehicular entrance to the service shop is a door facing north reached by a rather steep driveway from the alley. The shop is 20 feet long and wide enough to accommodate one automobile and the storage of some tires in racks along the side walls. Patrons who come to this shop for service enter it from the alley by way of the driveway.

Decedent was a wholesale customer of Goodyear and regularly purchased tires at Goodyear's store for resale at his Sinclair service station. On the morning of his death decedent went to the above described service area of the Goodyear store for the purpose of buying some tires. He found that Buckner was engaged in servicing the automobile of another customer, the above referred to Ernest R. Kohlstaedt, who had previously arrived to purchase some tires and have them installed. Decedent waited in the service area for Buckner to finish that particular job. We digress here to narrate the circumstances of Kohlstaedt's arrival and the presence of his automobile in the shop inasmuch as that vehicle was the instrumentality of plaintiff's demise.

At some time around ten o'clock on the morning of October 27, 1960, Kohlstaedt drove his 1960 Chevrolet automobile along the alley in the rear of the Goodyear store, turned into the driveway from the alley and drove (forward) into the service shop 'right in the basement there'. Buckner waited upon him, sold him two tires for the rear wheels, and then directed him to reverse the position of the car by backing it into the alley, turning, and then backing it into the shop so that the rear wheels would be positioned at the tire jack. Buckner jacked up the car, removed the rear wheels, mounted the new tires, replaced the wheels and removed the jack. He next tested the car's battery, found it to be defective, and installed a new one at Kohlstaedt's direction. Then, at Buckner's request, Kohlstaedt got in the car and started up the motor in order to see if the new battery worked properly. After stopping the motor Kohlstaedt went upstairs to pay his bill, leaving his automobile in the service area.

Buckner then undertook to fill decedent's order for new tires. Both men proceeded to a tire storage room which was immediately adjacent to the rear or south end of the service area but located on a higher level. Access from the service area to the tire storage room was by a flight of three stair steps. Decedent and Buckner picked out the new tires desired and set them aside. Then the two men went back down the stairs to the service area to look at some 'recaps' which were kept on both sides of the walls 'down where the car was parked'. Being unable to find the particular 'recap' decedent was looking for, the two men, who were then standing on the right hand side of the car next to the east wall, started to go back up the stairs to get the new tires from the storage room and make out the bill on them. The automobile was still in the same position it was in when Buckner installed the tires on it, and was entirely in the service area. The rear end of it was several feet from the steps.

According to Buckner's testimony, he was in the lead as the two men walked to the rear of the car and toward the steps. The car was not moving as he passed its right rear corner. When he reached the first or second step leading to the tire storage room he heard decedent say something to the effect that the car was moving. Buckner turned around, saw the car moving slowly and saw decedent holding onto the left side of the rear bumper trying to hold it back. Buckner immediately stepped down and took hold of the right side of the bumper but the car continued to move forward, out of the building, down the driveway and toward the alley. At some point which is not clear from the evidence, but which appears to have been someplace between the general vicinity of the door and halfway down the driveway, decedent let go of the bumper and ran around to the left side of the car. When the car was about 'halfway down the decline', it was going so fast Buckner had had to let go of the bumper to keep from being 'dragged' because he couldn't 'keep up with it'. He stumbled a few steps and by the time he straightened up the car had run into and across the alley and hit a utility pole on the north edge of it. He was unable to state exactly where decedent was at that time except that 'he had both hands on the steering wheel'.

Apparently the only witness who actually saw the automobile strike the pole was John L. Painter, who was standing in the door of a lumber yard which faces the alley. The witness's attention was attracted either by Buckner's yelling or by the noise of the car, and he looked up in time to see the left door of the car hit the utility pole. Decedent was crushed between the door and some adjacent part of the automobile. Immediately after the car stopped, he was found lying in the front seat unconscious, and was dead upon arrival at the hospital. The cause of his death was stated as suffocation resulting from a ruptured lung.

The floor of the service area slopes 4 1/4 inches in its total length of 20 feet from the rear at the steps to the door opening onto the driveway. The driveway from the door opening to the south side of the alley has a length of 41 feet and drops 6 1/2 feet in that distance. The car traveled a total distance of approximately 60 feet to collide with the utility pole.

Buckner admitted that Kohlstaedt had backed the car in the service area as he (Buckner) directed; that at no time did he ever tell Kohlstaedt to set the brakes or put the car in gear; that no chock or other device was used to prevent the car from rolling; and, that when he was installing the tires and battery on the car, he was 'in charge of where the car would be and how it would be handled'. Kohlstaedt, when asked (in a deposition read in evidence) whether the car was in gear when he started the motor after the new battery was installed, made this answer: 'It surely wasn't in gear, otherwise it wouldn't have rolled--it wouldn't have got there'. Examination of the automobile after the crash disclosed that the emergency brake was not 'on' and the gear lever was in 'neutral'.

The case was submitted on behalf of plaintiff by Instruction P 1 permitting recovery under the humanitarian doctrine, and by Instruction No. P 2 which hypothesizes primary negligence on the part of defendants in jointly causing or permitting the Kohlstaedt automobile to roll forward from a stationary position in the service area into collision with the utility pole and to thereby inflict decedent with fatal injuries.

No question is raised by the appealing defendants as to the sufficiency of evidence to establish negligence on their part. Complaining of other matters, they contend that the trial court should have directed a verdict in their favor because (1) plaintiff did not appropriate the cause of action for her husband's death within six months, (2) decedent was guilty of contributory negligence as a matter of law in attempting to stop the rolling automobile, and (3) there was insufficient evidence to submit the case on the humanitarian doctrine.

Some additional facts pertinent to the history of this case are necessary for discussion of defendant's contention that plaintiff failed to appropriate her cause of action within six months after her husband's death, and are here set out. The present suit is the second one instituted by plaintiff on the cause of action for her husband's death. Her first action was filed in the Circuit Court of Jackson County, Missouri, on April 11, 1961, and within six months from the death of her decedent. Although defendant Goodyear Tire & Rubber...