Kettler v. Hampton, D-X

• Decision Date: 14 January 1963
• Docket Number: No. 2,No. 49371,D-X,49371,2
• Citation: 365 S.W.2d 518
• Parties: Arthur KETTLER, Respondent, v. Marvin HAMPTON, d/b/a OverlandService Station, Appellant
• Court: Missouri Supreme Court

Page 518

365 S.W.2d 518

Arthur KETTLER, Respondent, v. Marvin HAMPTON, d/b/a Overland D-X Service Station, Appellant.

No. 49371.

Supreme Court of Missouri, Division No. 2.

Jan. 14, 1963.

Motion for Rehearing or to Transfer to Court En. Banc Denied

March 11, 1963.

A. G. Holtkamp, James J. Amelung, Holtkamp, Miller, Risch & Amelung, St. Louis, for appellant.

James F. Koester, and James M. Byrne, St. Louis, for respondent.

BOHLING, Commissioner.

Marvin Hampton appeals from a judgment awarding Arthur Kettler $16,000 for personal injuries. He questions the submissibility of plaintiff's case, the giving of certain instructions, and the propriety of an argument on behalf of plaintiff.

Plaintiff was injured September 4, 1959, while at defendant's service station in Overland for a 'grease job' on his 1956 Chevrolet automobile, equipped with automatic transmission, when his car suddenly lurched forward. Plaintiff contends defendant placed the selector (gear shift) lever in drive position. Defendant contends plaintiff left it in drive position when he got out of the car.

We first state the evidence favorable to plaintiff.

Defendant's 'grease rack' or 'lift' resembles the letter 'H,' two iron channels with a connecting link across the middle. It has no runways for the wheels. The rack comes up against the axle or frame of a car and lifts it so the wheels are hanging in the air. Cars have to be centered on the rack. Three iron bars (we understand 1/4 to 1/2 inch high) on the floor back of the rack are used to position car's rear wheels. Aside from the bars, the floor surface is flat. There are no other blocks or stops to keep a car from rolling.

Defendant, standing at the left front corner of plaintiff's automobile, guided plaintiff's positioning of his car over the rack by hand motions, stopping it with the rear wheels between the second and third iron bars and the front end about five feet from a tool cabinet. He told plaintiff to leave the motor running and he would check the automatic transmission. The plaintiff left his motor running, his car in neutral gear, and his brake released. Defendant was standing with his hand on the driver's door when plaintiff got out. Plaintiff moved to near the front of his car alongside his left front fender. He heard no tapping or pecking noise from his motor. Out of the corner of his eyes, he saw defendant leaning inside the car, with his head lined up with the center of the steering wheel. He could not tell in what direction defendant was looking or where defendant's hands were. Defendant was called by some one in the office and just as defendant left plaintiff heard a tapping or pecking noise start all of a sudden in his motor. Plaintiff did not then know what caused this noise in his motor, or that his selector lever had gotten into drive position.

Plaintiff worked as a truck mechanic in about 1940 and 1941, and continued to do mechanical work on his automobiles, adjusting and tuning them. He walked to the center of the front of his car, raised the hood, listened to his motor, reached forward, 'jiggled the throttle'; that is, gunned the motor and caused it to get quite a bit faster. The car lurched, jumped forward, driving plaintiff into the work bench and breaking both of his legs. Plaintiff, although he was unable to stand, pushed the car back about four feet. Defendant, not looking for any defect, noticed nothing wrong with plaintiff's car or its transmission system when he drove it out of the service station immediately after plaintiff's injury.

Plaintiff testified there never had been any work on the transmission or connecting links between the lever and the transmission of his car. In March, 1960, he made tests with his car after being released from the hospital. He placed the front of his car against the bumper of another car. Standing alongside his left front fender with his motor running and his selector lever in 'neutral,' he heard no tapping or pecking noise, but when the lever was placed in drive position and the motor started laboring this tapping or pecking noise started. It was the same noise he heard at defendant's service station. It occurred only when the lever was in the drive position. He tried 'all kinds of things' (jarring and shaking the car) to make the selector lever drop accidentally into the drive position but he could not make it do so. The lever had to be put manually in the drive position.

Willard McKinley, a school teacher, Milton A. Rossner, a laundryman, and defendant were defendant's witnesses. They were in the office when plaintiff arrived. Defendant, after plaintiff positioned his car over the rack, suggested that plaintiff 'leave the engine running' in order to check the automatic transmission. He then told plaintiff he was gong to pay his laundryman and would be right back. Defendant testified that, after plaintiff positioned his car and prior to the accident, he was never on the driver's side of plaintiff's car, never looked inside plaintiff's car, and passed on the passenger's, the right, side of plaintiff's car when he went to the office. As defendant started to pay Rossner, a carsh was heard in the grease room. The three men immediately went into the grease room, and found plaintiff injured and in a sitting position in front of his car.

There was testimony that plaintiff, within a few minutes after his injury, stated: 'I had forgotten I left the car in gear.' 'How foolish can a man be.' 'Nobody's fault but my own.' McKinley testified Rossner had gone to get something for a tourniquet when plaintiff made the statements. At the trial plaintiff testified he would not deny making the statements; he did not know whether he made them or not; he may have made them. He explained that at the time of the accident he though the cotter key might have fallen out as he was stopping his car so that even though he moved the selector lever to neutral, the transmission would still remain in drive gear; that something of this nature had happened on a prior occasion. It was following the tests plaintiff made after being released from the hospital that he learned there was nothing wrong with the transmission on his car and that the selector lever had to be placed in drive gear manually.

In passing on the submissibility of plaintiff's case, the evidence is to be reviewed in the light most favorable to the plaintiff, including all inferences of fact which a jury might draw with propriety. Hall v. Rager, Mo., 357 S.W.2d 83; Flanigan v. City of Springfield, Mo., 360 S.W.2d 700.

Defendant contends there was no direct or legally sufficient circumstantial evidence to establish that he put the selector lever in drive position. He cites Davidson v. Hennegin, Mo., 304 S.W.2d 836, 839; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31, 33[3, 4]; Lindsay v. Wille, Mo., 348 S.W.2d 1, 4[5-6], and Pietraschke v. Pollnow, Mo.App., 147 S.W.2d 167, 171[8, 9]. Defendant argues that plaintiff, who had just driven his car into the grease room, might have left the car in drive gear, imposing no liability on defendant; or the lever may have dropped into drive position without being touched by anyone. In each of defendant's cited cases there was no substantial evidence that the defendant or defendants committed the alleged negligent act, including circumstantial evidence negativing the idea it was due to a cause not attributable to defendant. Defendant's cases supra, and the Pietraschke case at 169[1, 2]. In the case at bar, if plaintiff's evidence is believed, he left the selector lever in neutral when he got out of his car; defendant was the only person who, thereafter and prior to plaintiff's injury, was in a position to have moved the lever from its neutral position to its drive position; and, according to plaintiff, the lever had to be moved manually from its neutral position to put it in drive position.

The Pietraschke case (supra 171[8, 9]) was a master and servant case. Plaintiff, a house servant, ran a needle into her hand when she made a quick swipe to brush ashes off a card table. The court considered the servant assumed the ordinary risks incident to the employment; that the master had no reason to anticipate the servant would perform the duty involved without observing and removing such objects, or would not use a cloth to wipe off the table. This situation differs from moving an automobile selector lever from neutral to a drive position with the motor running and the brakes released and then leaving the automobile with its auto-mechanic owner standing near the front of it.

The negligence of a motorist in leaving an automobile on a street in gear with the motor running, without anyone to operate it, and with guests in the rear seat, has been held a jury question. Myers v. Hauser, Mo.App., 61 S.W.2d 214. See, among others: Humble Oil & R. Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995[3, 4, 7, 8]; Moody v. Clark, Tex.Civ.App., 266 S.W.2d 907[4, 6]; Block v. Pascucci, 111 Conn. 58, 149 A. 210; Di Sabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184[7 et seq.]; Prager v. Isreal, 15 Cal.2d 89, 98 P.2d 729[10, 11]; Waltzinger v. Birsner, 212 Md. 107, 128 A.2d 617; Storey v. Parker, La.App., 13 So.2d 88; 2 A Blashfield, Cyc. Automobile L. & P., Sec. 1206; Annotations, 16 A.L.R.2d 1010; 51 A.L.R.2d 645.

The case at bar differs from defendant's authorities. It may be close; but defendant's presentation does not establish that plaintiff failed to make a submissible case.

Plaintiff's verdict-directing instruction (No. 2) required findings, in the conjunctive, that on the occasion in evidence plaintiff was at defendant's to have his automobile lubricated; that defendant aided plaintiff in positioning his automobile over the rack in the grease room; that defendant instructed plaintiff to leave his motor running; that plaintiff followed said instruction, did leave his motor running, and left his automobile with its selector lever in its 'neutral' position and (q...