Kavigian v. Lonero
| Decision Date | 29 December 1942 |
| Citation | 312 Mass. 603,45 N.E.2d 823 |
| Parties | CHARLES KAVIGIAN v. SALVATORE LONERO (and a companion case [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 10, 1942.
Present: FIELD, C.
J., DONAHUE, QUA COX, & RONAN, JJ.
Negligence, Motor vehicle, Volunteer, Invited person, Contributory, Assumption of risk. Volunteer. Evidence, Opinion: expert.
One whose services in helping the owner of a stalled automobile to start it were accepted by the owner was not a mere volunteer but a person to whom the owner owed a duty of exercising due care even though the owner did not expressly ask him to help and he was not to be paid for his services.
Evidence, that while one familiar with the adjustment of carburetors was helping the owner of a stalled automobile to start it and was pouring gasoline into the carburetor, from the top of which the air cleaner had been removed, the owner, disobeying the helper's instructions, used the starter with the ignition on, whereupon there was a back fire through the top of the carburetor which burned the helper and a bystander watching the operation, warranted a finding of negligence of the owner toward the helper and the bystander and did not require a ruling that the helper had assumed the risk of injury or was guilty of contributory negligence.
An expert familiar with the type of carburetor with which automobiles of a standard make in common use were customarily equipped was properly allowed to give an opinion respecting the cause of an explosion in the carburetor on a certain automobile of that make, although there was no evidence to show specifically the type of that particular carburetor.
TWO ACTIONS OF TORT, the second originally by Henry J. Atkins and after his death prosecuted by the administratrix of his estate. Writs in the District Court of Somerville dated November 18, 1939.
Upon removal to the Superior Court, the actions were tried before O'Connell J.
G. E. Thompson & E.
V. Keville, for the plaintiffs, were present in court and submitted the case on brief.
D. H. Fulton, for the defendant.
The defendant's automobile had become stalled in a public way in Somerville. While Kavigian was attempting to start the motor by priming the carburetor the defendant put his foot upon the starter and a flame of gasoline was emitted from the top of the carburetor, where the air cleaner had been removed, and burnt Kavigian and also Atkins who was standing in the street near the automobile watching the efforts being made to start it. The jury returned verdicts for the plaintiffs but the judge, under leave reserved and subject to the exceptions of the plaintiffs, ordered verdicts to be entered for the defendant. The defendant has excepted to the introduction in evidence of an opinion given by an expert as to the cause of the emission or explosion of the gasoline, and to the failure of the judge to grant a request, made at the conclusion of the charge, to instruct the jury as to the degree of care the defendant owed Kavigian and Atkins if they were volunteers in undertaking to start the defendant's automobile.
There was evidence that Kavigian was sitting with Atkins on the steps of a house near where the defendant was doing something about the motor of his automobile in an unsuccessful endeavor to start the mechanism, and that the defendant, who knew that Kavigian worked in a garage, requested him to put the motor in operation for him. He informed Kavigian that he had run out of gasoline but had secured five gallons, which were in the tank. Kavigian took off the distributor, told the defendant to turn on the ignition, checked the points, and found there was nothing wrong. He then removed the air cleaner from the top of the carburetor, poured in eight or nine drops of gasoline, which the defendant had given him, replaced the cleaner and told the defendant to get into the automobile and start the motor. The defendant did so but the motor stopped after running for thirty seconds. Kavigian got some more gasoline from the defendant. He again removed the air cleaner and told the defendant not to start the automobile until he had replaced the cleaner. The defendant got into the automobile. While Kavigian was pouring the gasoline, the defendant put his foot on the starter, the fan belt started to revolve, Kavigian heard the backfire in the motor, and a flame burst out from the carburetor, setting fire to his clothing and causing serious injuries to himself and to Atkins, who was standing in the street with one foot upon the bumper of the automobile. There was also testimony by the defendant that he had the hood up and was looking over the engine when Atkins came along; that Atkins then called Kavigian to come over and "fix the car for him [the defendant]"; that Kavigian came over and attempted to start the motor; and that the defendant thereafter did only what Kavigian directed him to do. It is undisputed that the accident happened immediately after the defendant used the starter. Kavigian had been employed, although not regularly, for eight years in adjusting carburetors and tuning up motors, but he was not familiar with the motors themselves. He testified that a flooded carburetor, backfire from the carburetor, or poor ignition might cause the gasoline to catch fire, but that in his opinion the fire was caused by stepping on the starter when the ignition was on, causing a backfire which escaped through the opening in the carburetor where the air cleaner had been removed. Although this testimony by Kavigian was somewhat shaken in cross-examination, there was no error of law if the jury saw fit to accept it as stating the cause of the accident.
The defendant contends that the evidence shows that the ignition was on in accordance with the directions of Kavigian from the time he first attempted to prime the carburetor, that the explosion could not have happened unless it had been on, that the explosion was attributable to this fact, and that therefore Kavigian was careless. The difficulty with this contention is that the jury could find that the ignition was on from the time Kavigian tested the distributor, or that it was on from the time he first attempted to prime the carburetor, or that it was put on while he was making his second attempt to prime it. Even if the ignition had not been turned off after it had been turned on when the distributor was examined, the jury could find that the ignition alone was not the cause of the accident. They could find that it was not defective when the motor was started and operated for thirty seconds or when the accident occurred. They also had the testimony of the defendant that the automobile was in perfect working order with the exception of the gasoline gauge. Kavigian had found nothing wrong with the ignition when he tested the distributor. A finding that the ignition system was not...
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