Furr v. McGrath
| Decision Date | 10 March 1959 |
| Docket Number | No. 37727,37727 |
| Citation | 1959 OK 34,340 P.2d 243 |
| Parties | Vera B. FURR, Plaintiff in Error. v. Don McGRATH and Ralph Hulvey, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
In an action for damages for personal injuries, where plaintiff's theory and evidence was that the thing that caused the accident resulting in her injuries was under defendants' control, that defendants knew how the accident happened, and she did not, and that such accidents do not ordinarily occur without negligence by the party or parties in such control, it could be inferred, or presumed, under the doctrine of res ipsa loquitur, that defendants' negligence was the cause of the accident; and, when defendants then introduced evidence tending to show how the accident happened and their lack of negligence in the matter, unless all reasonable men could, from undisputed facts, have agreed that defendants were not negligent as alleged, the court should have given the jury instructions authorizing application of the res ipsa loquitur doctrine in the event they found the fact to be such as to bring the case within operation of the doctrine; and failure to so instruct was reversible error.
Appeal from the District Court of Tulsa County; Leslie Webb, Judge.
Action by plaintiff motorist against a filling station operator and attendant, as defendants, for damages for personal injuries she allegedly sustained when a mobile jack rolled out from under her car and struck her. After verdict and judgment for defendants, plaintiff appeals. Reversed and remanded with directions.
G. C. Spillers, G. C. Spillers, Jr., Tulsa, for plaintiff in error.
Sanders, McElroy & Smith, Tulsa, for defendants in error.
The defendant in error, McGrath, is the operator of a gasoline filling, or service, station in Tulsa, and Hulvey, the other defendant in error, was, at the time of the accident involved herein, employed at said station as an attendant. The action, which this appeal concerns, was instituted against both McGrath and Hulvey, as defendants, by plaintiff in error, as plaintiff, to recover damages for personal injuries she suffered when, on a night in December, 1952, she drove her 1950 Model Plymouth Sedan to said station to get its stop lights fixed so they would not burn constantly; and, after the defendant Hulvey undertook to fix them, and had raised the seadn on an 'O-Boy' jack (mounted on wheels, rollers and/or casters), the jack rolled out from under the sedan, striking plaintiff's right foot, knocking her down to a sitting position on the filling station's driveway, and causing her, as she fell, to strike her head against the car's open front door.
Our continued reference to the parties will be by their proper names and/or trial court designations.
When the car, in some manner, came off of the jack, which rolled out from under it, and struck plaintiff, as aforesaid, she was standing on the driveway at the side of the car, where, from her standing position, she could not see under the car, and the only part of the jack she saw was its handle sticking out from beneath the car. As will be noted from the basic in the appeal growing out of the first trial of this case, McGrath v. Furr, Okl., 293 P.2d 609, 611, the defendant Hulvey, who jacked up the car and then got under it on a creeper negligence was based on the allegation and premise that Hulvey had placed the jack under the car's driveshaft, instead of its frame. As pointed out in the cited case, the hypothesis was not supported by any evidence except plaintiff's testimony, which, in view of the fact that she could not see under the car from where she was standing, was termed, in the cited opinion, 'a conclusion of the witness and incompetent as evidence * * *'.
Before the last trial of the cause, plaintiff filed therein a second amended petition, in whose Paragraph V, (rather than attempting to allege just how and where the jack made contact with the car) she alleged generally that 'defendants were negligent in * * * improperly' placing 'the jack so that it would not support the automobile.' Immediately following this allegation, plaintiff further alleged that 'all of the instrumentalities being used by the defendant, his agent, servant and employee, were within the exclusive control of the defendants and that the plaintiff had no control, actual or physical, of any of the instrumentalities or her automobile at the time of the accident which caused her injury.' The plaintiff's paragraph V also contained specific allegations of defendants' negligence, but none of them dealt with any specific position of the jack under the car.
In the separate answers they filled, both defendants specifically recognized that, by the above described pleading, plaintiff was relying upon the doctrine of res ipsa loquitur for making out a prima facie case of defendants' negligence, and, inter alia alleged, in substance (by way of forestalling application of the doctrine) that, at the time of the accident, plaintiff was in full charge of her automobile and had full custody and control over it.
At the trial, after relating how she drove the car to the station and apprised Hulvey she was there for the purpose of getting the defective lighting fixed, she testified he told her to drive the car to a place he pointed out on the station's driveway, away from the gasoline pumps, and that he said he would see what he could do. She further testified, in substance, that after she had driven the car to that place, she turned off its motor, put the car in netural gear, and remained sitting behind the steering wheel. She testified further, in substance, that after Hulvey had walked over to the car where it then stood, he asked her if she had a flashlight and she thereupon produced hers from the car's glove compartment, and handed it to him. She further testified that, with the flashlight, he then looked under the car's hood, then under its dash board, and then went behind the car and stated that he would have to get a jack and jack up the car. When he rolled the O'Boy jack in question up to it, plaintiff stepped out of her car and stood by its left side, leaving open the front door, on that side of the car. She testified that Hulvey then placed the jack under the left side of the car, jacked it up, and then got the creeper and rolled under the car on it. According to plaintiff's testimony, Hulvey then asked her to turn on the car's light switch, and, when she leaned toward the car to do so, but without touching it, the car slipped off the jack, which rolled out from under the car and hit her.
To the contrary, the defendant Hulvey, after relating that he did not jack the car up high enough to raise any of its wheels off of the driveway, testified that, after he got under the car on the creeper, he asked plaintiff if the stop lights were out and she answered that they were, and also said: 'Wait, let's see if the tail lights are burning.' Said defendant further testified that plaintiff then went around the car and started to get into it. He also stated that, as he was getting ready to come out from under the car, plaintiff set one foot in the car and then he heard the car's starter turning, and then the jack turned over and the car rolled forward.
Unlike the first trial, at the trial here involved, plaintiff made no effort to testify what particular part of the car was resting on the jack, but testified specifically that she didn't look under the car to see where it was placed. After Hulvey had testified that he placed the jack under the left side of the car's frame (which was the same side of the car toward which the filling station's driveway slanted) plaintiff testified that, after the jack hit her, the defendant McGrath came over and told Hulvey, 'I don't want to ever see you raise a car up on a jack like that again.'
Among the witnesses for plaintiff was one George E. McNeill, who had been in the business of repairing and servicing O'Boy jacks for twelve years, and testified that he had lifted 'thousands' of automobiles with that type of jack. McNeill further testified that the way to raise the rear end of an auto, with such a jack, is to place the jack in the center of the auto's rear housing, balance it and center the auto's differential where it will not slip off the points or prongs around the outer edge of the jack's cradle. This witness further testified, inter alia, as follows:
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Other testimony of this witness was to the effect that when on O'Boy jack is raised under a car, even though it is not raised high enough for any of the car's wheels to be suspended in the air, and the body of the car is raised only eighteen inches, or enough to flex the springs, the jack is then holding up a weight of 'one thousand pounds anyway', and the amount of stress on the jack, in a measure, depends upon 'what it (the jack) is sitting on and at what angle it is sitting, whether straight or not.' The general tenor of...
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...is satisfied presents a question for the trier of fact ); Gentles v. Lanctot, 145 Vt. 396, 491 A.2d 336, 337 (1985); Furr v. McGrath, 1959 OK 34, 340 P.2d 243, 250. See also Kusy v. K-Mart Apparel Fashion Corp., 681 P.2d 1232, 1235 (Utah 1984); Virginia, supra note 22 at 971; Seneris, supra......
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...occur in the absence of negligence and that the defendant was in control of the instrumentality which caused the accident. See Furr v. McGrath, Okl., 340 P.2d 243; Mohawk Drilling Co. v. McCullough Tool Co., 10 Cir., 271 F.2d 627. In the first place, it is sufficient to say that Hardware di......
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