Katz v. Harrington, s. 68--966

• Decision Date: 22 July 1969
• Docket Number: Nos. 68--966,68--967,s. 68--966
• Parties: Frank KATZ, Appellant, v. Eva M. HARRINGTON, d/b/a Stephens Van Terminal and Eugene P. Farias, Appellees.
• Court: Florida District Court of Appeals

Page 11

226 So.2d 11

Frank KATZ, Appellant, v. Eva M. HARRINGTON, d/b/a Stephens Van Terminal and Eugene P. Farias, Appellees.

Nos. 68--966, 68--967.

District Court of Appeal of Florida, Third District.

July 22, 1969.

Rehearing Denied Sept. 9, 1969.

Fromberg, Fromberg & Roth, Miami, for appellant.

Dean, Adams, George & Wood and David L. Willing, Miami, for appellee, Harrington.

Charles C. Papy, Jr., Coral Gables, for appellee, Farias.

Before PEARSON, C.J., and HENDRY and SWANN, JJ.

PEARSON, Chief Judge.

The plaintiff in the trial court appeals from judgments for the two defendants entered upon orders directing verdicts. At the conclusion of all the testimony, the trial court struck a defense of contributory negligence and then directed the verdicts, thereby in effect ruling that the plaintiff had failed to establish a prima facie case of negligence.

Appellant Katz's car was struck as it proceeded on the North-South Expressway by a car owned by appellee Farias. Farias's car suddenly backed off the parkway portion of the expressway and onto the roadway. The engine had been started while the vehicle was unoccupied. Appellee Harrington is the owner of a towing service whose employee, Bell, was allegedly guilty of negligence in improperly starting Farias's car while it was in reverse gear.

Prior to its involvement in the collision with Katz's car, Farias's car had been the first in a chain of three cars involved in rear end collisions on the North-South Expressway in Miami, Florida. It appeared to the officer who took charge of the situation that more than one wrecker would be needed to clear the roadway. He called for two wreckers, both owned by appellee Harrington. One was operated by Harrington's employee, Bell. At the direction of the police officer Farias's car was pushed onto the parkway dividing the north bound from the south bound roadway in order to clear the road. Farias was unable to start his car. He reported this fact to the officer, who asked Bell if he would assist Farias in getting the car started. Bell was a man of limited experience, having had no mechanical training and having operated a wrecker for only two months. He entered Farias's car, placed the gear shift lever in the park position, and attempted to start the car. Bell, too, was unable to start it. Farias then asked Bell if there was some way to get the car started. Bell took a bent screwdriver and used it to 'jump-start' the car. He had 'jump-started' cars on two previous occasions but was unaware that in using this procedure he by-passed safety factors which ordinarily prevent a car with automatic transmission from being started while it is in gear. When the car started, it backed onto the busy expressway and struck Katz's car.

THE DIRECTED VERDICT FOR THE OWNER, FARIAS

Appellant, Katz, urges that the trial judge erred in entering a directed verdict for appellee Farias because, as the owner of the offending car, Farias was liable under the dangerous instrumentality doctrine. Farias contends that the court correctly determined he could not be liable under the facts of this case because his car either (1) was not being operated on the highway and therefore was not a dangerous instrumentality, or (2) was being operated by an independent contractor and he therefore was insulated from liability.

We begin our resolution of these arguments by stating the following rules. An owner who leaves his car on a public street has the duty to exercise ordinary prudence to prevent a happening he may reasonably anticipate or guard against from causing the car to go into motion and inflict injury; a violation of that duty eventuating in harm will render him liable for damages. Barbanes v. Brown, 110 N.J.L. 6, 8, 163 A. 148 (1932); Hickerson v. Daskam, 313 Pa 379, 169 A. 769 (1934); Annot. 16 A.L.R.2d 979, § 3 (1951); 10B Blashfield, Cyclopedia of Automobile law and Practice, § 1206 (1957). Whether an owner has violated the foregoing duty is a question to be determined by the jury. Square Deal Trucking Co. v. Shifflette, 75 A.2d 442; District of Columbia Municipal Court of Appeals (1950); Boyle v. McGill, 337 Ill.App. 647, 86 N.E.2d 257 (1949); Bachand v. Vidal, 328 Mass. 97, 101 N.E.2d 884 (1951); Barbanes v. Brown, above; Stanton v. Clegg, 278 App.Div. 486, 106 N.Y.S.2d 178 (1951); Hickerson v. Daskam, above; Humble Oil & Refining Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995 (1949); 10B Blashfield, § 6649.

In reviewing a judgment entered pursuant to a motion for a directed verdict, appellate courts must view the evidence and all inferences derivable therefrom in the light most favorable to the nonmoving party. See, e.g., Bittson v. Steinman, Fla.App.1968, 210 So.2d 30. It is in such light that we view the evidence in relation to appellant, Katz. Farias was aware that his car had been damaged in the three car collision. He was aware that it did not operate properly when he was unable to start it. A jury could find that his actions in standing by without in any way directing or assisting in the starting by Bell were a negligent disregard of his duty to see that the car (a) was out of gear, (b) had the emergency brake on, (c) had an occupant to apply the foot brake or turn off the ignition in case of trouble. Having determined that Farias had the foregoing duty, we conclude that a jury could have found Farias responsible for the harm which followed the entry of his driverless vehicle onto the roadway. A discussion of whether this entry was 'operation upon a highway' is not necessary. A jury could have found upon the facts that Farias through his own failure to take due care unwittingly allowed the car to be projected into the highway traffic. We therefore conclude that the trial court erred in directing a verdict for the owner of the offending car, Farias.

Farias's alternative argument that he is insulated from liability because any harm caused by his car resulted from the improper starting of the car by Bell, who was an independent contractor (since he was the employee of Harrington, an independent contractor) relies upon decisions holding that an owner is not chargeable with the negligence of the employee of a service station or garage after the owner has delivered his car for repair work. See Petitte v. Welch, Fla.App.1964, 167 So.2d 20; Patrick v. Faircloth Buick Co., Fla.App.1966, 185 So.2d 522. But we cannot consider this argument at the present stage of this cause, since a jury has the duty to determine whether a person is acting as an agent or as an independent contractor. See Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 400, 80 S.Ct. 789, 4 L.Ed.2d 820, 823 (1960); Bradford Builders, Inc. v. Sears, Roebuck & Co., 270 F.2d 649, 654 (5th Cir. 1959); Phillips Co-operative Gin Co. v. Goshen, 230 Ark. 270, 322 S.W.2d 68 (1959); Crawford v. Woodrich Const. Co., 239 Minn. 12, 57 N.W.2d 648, 655--656 (1953); Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 498 (1953); Huff v. Dunaway, 63 N.M. 121, 314 P.2d 722 (1957); Gallo v. American Egg Co., 76 R.I. 450, 72 A.2d 166 (1950); 10B Blashfield, § 6641. The specific question concerning Bell's status which a jury must answer in the present cause is whether Bell, in acceding to Farias' request for assistance (made through the officer in charge) and in attempting to start Farias's car...