Hi-Speed Auto Wash, Inc. v. Simeri, HI-SPEED

• Docket Nº: HI-SPEED
• Citation: 169 Ind.App. 116, 346 N.E.2d 607
• Case Date: May 10, 1976
• Court: Court of Appeals of Indiana

Page 607

346 N.E.2d 607 169 Ind.App. 116 HI-SPEED AUTO WASH, INC., Defendant-Appellant,
v.
Patrick SIMERI, Plaintiff-Appellee. No. 3--574A77. Court of Appeals of Indiana, Third District. May 10, 1976.

[169 Ind.App. 117]

Page 608

Arthur A. May, Terry V. Lehr, Crumpacker, May, Levy & Searer, South Bend, for appellant.

Charles A. Sweeney, Jr., Roemer, Sweeney, Butler & Simeri, South Bend, for appellee.

GARRARD, Judge.

Appellee Simeri recovered a judgment for personal injury sustained at Hi-Speed's carwash. Hi-Speed's appeal challenges the sufficiency of the evidence to establish negligence. It also asserts that if it was negligent a fortiori, Simeri was contributorily negligent. We find the evidence [169 Ind.App. 118] was sufficient to go to the jury on both questions. Accordingly, we affirm.

The evidence disclosed that Simeri had patronized the carwash on previous occasions. On March 27, 1973, he drove to the carwash to have his automobile washed and cleaned. He drove into the entrance and stopped where a sign indicated. An attendant then opened the doors. As Simeri got out, attendants were waiting to clean the inside of the car.

Simeri walked around to the right side of the car where he noticed that a piece of chrome trim on the right front fender was loosened just forward of the door jamb. He bent down next to the car, pointed to the loose spot with his left index finger, and asked an employee of Hi-Speed, who was standing to Simeri's right and slightly behind him, whether the strip of chrome would be knocked off in the washing process. At this time, another Hi-Speed employee closed the car door, severing the tip of Simeri's finger and causing the injury sued upon.

Both prongs of Hi-Speed's argument rely to some extent upon the concept that under certain circumstances, if the defendant was negligent, the plaintiff must also have been negligent; or conversely, if plaintiff was not contributorily negligent, then defendant's conduct could not have been negligent either. The basis for the concept arises from the fact that the standard of care applied to each is the objective requirement of 'ordinary' or 'reasonable' care under the circumstances. See, e.g., Hunsberger v. Wyman (1966), 247 Ind. 369, 216 N.E.2d 345; Hedgecock v. Orlosky (1942), 220 Ind. 390, 44 N.E.2d 93; and Stallings v. Dick (1965), 139 Ind.App. 118, 210 N.E.2d 82.

Of course, it is proper for counsel to argue that under a given set of facts and because of the requirement that both plaintiff and defendant exercise reasonable care, the jury should determine as a question of fact that either both exercised reasonable care or neither one [169 Ind.App. 119] did. Yet, the simple logic of such an argument must not obscure the issues presented on appeal when the trier of fact concludes otherwise. Our review is limited to determining whether the jury, as a matter of law, could not have arrived at its conclusion upon the evidence presented at trial. As stated more frequently, was there any evidence possessing probative value which, if credited by a jury of reasonable persons, would justify the conclusion reached as reasonable? In this regard, it is to be recalled that the burden of proving negligence is on the plaintiff. Proving contributory negligence rests with the defendant. Accordingly, our review should first determine whether the evidence supports a finding that the defendant was negligent and should then consider the determination that the plaintiff was not contributorily negligent. The latter inquiry includes consideration of whether the plaintiff's conduct was such that as a matter of law it must

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be considered negligent. In a proper case, this includes a comparison of the defendant's conduct, which the trier of fact must have found to be negligent if it made an award.

In the present case, there is no question that Hi-Speed owed a duty of ordinary care to Simeri. The jury could have determined this duty was breached when Hi-Speed's employee saw Simeri kneeling by the opening between the front door and the front fender with his finger near the opening and yet proceeded to slam the door shut without giving warning or otherwise attempting to determine that Simeri was safe.

Hi-Speed, however, urges that the uncontradicted testimony of its employees was that they were unaware that Simeri's finger was in the door opening. Hi-Speed urges that in the absence of any knowledge that Simeri was in danger or peril, it cannot be charged with negligence.

In Hunsberger v. Wyman (1966), 247 Ind. 369, 373, 216 N.E.2d 345, 348, our Supreme Court, citing Kennedy v. Southern Fire Brick & Clay Co., Inc. (1927), 86 Ind.App. 629, 159 N.E. 1, stated,

[169 Ind.App. 120] 'Where there is no knowledge, actual or constructive, of danger or peril on the part of the defendant, he cannot be charged with negligence.'

In Hunsberger, the plaintiff was injured when, after unsuccessfully attempting to cut the bed from an old truck belonging to defendant, he struck the truck bed with an axe and it fell on him. The trial court directed a verdict for the defendant which was affirmed on appeal. After discussing the equality of knowledge possessed by the parties and emphasizing that both the actual cutting and the use of the axe were the affirmative acts of plaintiff done on his initative, the court made the abovequoted statement to underscore that under those circumstances, plaintiff was necessarily guilty of contributory negligence if it could be assumed that the defendant was negligent in permitting him to proceed.

In the Kennedy case, cited in Hunsberger, the court affirmed a judgment for the defendant. There the plaintiff's decedent was killed when trapped in a clay storage bin in defendant's factory. It was alleged that defendant was negligent in continuing to operate its machinery after the young decedent became trapped. The court pointed out that the decedent was not an employee and that the verdict was proper since the defendant had neither actual or constructive knowledge of his position of peril during the time in question. In...