Ferraro v. Taylor
| Decision Date | 20 March 1936 |
| Docket Number | 30,758 |
| Parties | JAMES FERRARO v. ROY TAYLOR AND OTHERS; LOUIS FERRARO v. SAME; O. H. GRAY AUTO LIVERY SERVICE, APPELLANT |
| Court | Minnesota Supreme Court |
Two actions in the district court for Hennepin county consolidated for trial and heard together on appeal, one on behalf of Louis Ferraro, a minor, by James Ferraro, his father and natural guardian, to recover for injuries sustained by the minor in an auto accident; and the other by the father to recover for consequential damages sustained. The cases were tried before Lars O. Rue, Judge, and a jury. There was a verdict of $7,700 for plaintiff Louis Ferraro and one for $3,000 for James Ferraro, both against defendant O H. Gray Auto Livery Service, but in favor of defendant Roy Taylor. By direction of the court, there was a verdict for defendant Clyde L. George in each case. From an order denying its alternative motion for judgment or a new trial in each case, defendant O. H. Gray Auto Livery Service appealed. Reversed and new trial granted.
Automobile -- injury to third person from operation of rented automobile -- liability.
1. Where T rented a car to drive and found it in such defective condition that it was dangerous to other traffic, his negligence in continuing to operate it upon the highway did not insulate the negligence of the corporation which rented the car to him since it (the corporation) participated in setting in motion the negligence of T and should have anticipated that he would continue to drive the car and expose others to injury. It rented the car to him for the very purpose for which he was using it when, in part at least, on account of its defects it collided with plaintiff's car.
Automobile -- injury to third person from operation of rented automobile -- verdict.
2. Under the circumstances a verdict for T does not make perverse a verdict against the corporation.
Trial -- misconduct of counsel -- duty of trial court -- new trial.
3. It is the duty of trial courts on their own motion to prevent counsel from arousing passion or prejudice in jurors by stopping such flagrant appeals to prejudice as occurred in this case. A new trial is ordered for misconduct of counsel and failure of the trial court to correct it.
Attorney and client -- attorney testifying for client.
4. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client. The situation in the case at bar does not fall within any of the exceptions to the impropriety of counsel becoming a witness for his client in a case which he is trying.
Snyder, Gale & Richards, for appellant.
Ossanna, Hall & Hoaglund and Charles E. Carlson, for respondents.
In a suit to recover for personal injuries the plaintiff had a verdict against the owner of a rented car, defendant O. H. Gray Auto Livery Service, which has appealed to this court from an order denying its blended motion for judgment or a new trial.
At about 7:30 o'clock in the evening of September 1, 1933, defendant Roy Taylor rented a Ford sedan from the corporate defendant O. H. Gray Auto Livery Service on the "drive yourself" plan. Taylor had proceeded only a short distance from the place where he procured the car when he ascertained that the windshield wiper was out of order and was not functioning; that there was excessive play in the steering device; that the brakes would not hold; that the foot accelerator would stick when pressed down and would not come back when the pressure was released. After several near accidents due, as Taylor claims, to the defects in the car, he was, shortly before ten o'clock that evening, driving northerly upon Central avenue in Minneapolis. While driving downgrade over a viaduct the accelerator stuck; the motor was racing; the brakes would not hold; the car would not respond to the steering wheel; the rain was beating upon the windshield, and his vision was obstructed because thereof and the failure of the windshield wiper to function. As a consequence, so he claims, he lost control of the car; it speeded across the street to his left and smashed into a car driven by the plaintiff Louis Ferraro, causing severe injuries to Louis and also damaging his car. Taylor too was injured, and so was the car he was driving.
To recover damages for these injuries plaintiff, by his father as natural guardian, brought this action against Taylor and the other defendant. The father also brought action in his own behalf against the same defendants for expenses incurred by him for his son's medical and hospital expenses and for consequential damages. The cases were tried together below and have been similarly submitted here. Verdicts for both plaintiffs were rendered against the corporate defendant. But the jury by its verdict also found "in favor of the defendant Roy Taylor."
Defendant corporation, hereinafter referred to as the defendant, urges that it is entitled to judgment because (1) its negligence in failing to furnish a car free from defect was not the proximate cause of plaintiff's injury; (2) that its primary negligence, if such were shown, was "insulated" by the subsequent and independent negligence of Taylor; (3) that the jury's finding that the accident was not caused by Taylor's negligence compels a similar finding for it; (4) defendant also contends that it must have a new trial on the ground of misconduct of plaintiff's counsel in his argument to the jury.
1. We do not find ourselves in accord with the first three contentions of the defendant. The rule seems to be well established that if the occurrence of the intervening cause might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original cause and the injury. 45 C.J. p. 934, § 493, and cases cited in note 68; Teasdale v. Beacon Oil Co. 266 Mass. 25, 28, 164 N.E. 612, 613; Seith v. Commonwealth Elec. Co. 241 Ill. 252, 260, 89 N.E. 425, 24 L.R.A.(N.S.) 978, 132 A.S.R. 204; Carroll v. Central Counties Gas Co. 96 Cal.App. 161, 167, 273 P. 875, 274 P. 594.
In Teasdale v. Beacon Oil Co. 266 Mass. 25, 164 N.E. 612, the clothing of a guest in an automobile was negligently saturated with gasolene by an attendant at a gasolene station. The car was equipped with an old-fashioned coil box which, when uncovered, exposed a spark of electricity when the car was cranked. The driver knew this, and also he apparently knew that the guest's clothing had been saturated with gasolene. Nevertheless he cranked the car with the top of the coil box off. The guest's clothing at once burst into flames. In a suit to recover for the ensuing injuries the oil company contended that the driver's negligence was the sole cause of the accident and insulated it from liability for the negligence of its employe in saturating the plaintiff's clothing with gasolene. The court said in holding the defendant oil company liable :
In Seith v. Commonwealth Elec. Co. 241 Ill. 252, 260, 89 N.E. 425, 24 L.R.A.(N.S.) 978, 132 A.S.R. 204, the court, while holding the intervening cause as being sufficient to insulate the defendant's negligence, laid down the general rule as we have stated it here and said:
"Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer."
Certainly in the case at bar the intervening cause was set in operation by the original negligence, for the defendant company sent Taylor out upon the street with a car in such condition that it might reasonably be expected to injure someone. See also Carroll v. Central Counties Gas Co. 96 Cal.App. 161, 167, 273 P. 875, 274 P. 594.
If the testimony of the defendant Taylor is to be believed, and evidently the jury based its verdict upon that testimony, the Gray company rented to Taylor an automobile in such a gravely defective condition that it was a menace to all other traffic on the highway. Defective in brakes and steering gear and without an effective windshield wiper, the car, if driven at all upon the highway, was likely to collide with any other vehicle thereon. In its then condition it was a dangerous instrumentality, and the only was in which Taylor could have got the car safely back to the Gray company was to have it towed by another vehicle. Obviously and contrary to the verdict of the jury, he was guilty of negligence in driving the car in the condition in which he found it.
The Gray company was negligent in furnishing him such a car, but it owed two distinct duties in respect to the car, one to Taylor growing out of its special relation to him to furnish him a safe and manageable car, and the other to the general public, which would necessarily be exposed to risk and danger from the negligent discharge of its duty to Taylor. Moon v. N.P.R. Co. 46 Minn. 106, 109, 48 N.W. 679, 24 A.S.R 194; Collette v. Page, 44...
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