A.L. Dodd Trucking Service v. Ramey

• Decision Date: 19 April 1946
• Citation: 194 S.W.2d 84,302 Ky. 116
• Parties: A. L. DODD TRUCKING SERVICE v. RAMEY.
• Court: Kentucky Court of Appeals

194 S.W.2d 84

302 Ky. 116

A. L. DODD TRUCKING SERVICE v. RAMEY.

Court of Appeals of Kentucky

April 19, 1946

Appeal from Circuit Court, Warren County; Robert M. Coleman, Judge.

Action by Fred Ramey against A. L. Dodd Trucking Service for injuries sustained by plaintiff while on defendant's premises. From a judgment for plaintiff, the defendant appeals.

Reversed.

Finley F. Gibson, of Louisville, and G. D. Milliken of Bowling Green, for appellant.

Rodes Harlin & Willock, of Bowling Green, for appellee.

STANLEY Commissioner.

We summarize the evidence in behalf of the plaintiff, now appellee, Fred Ramey, in his action against A. L. Dodd, doing business as the Dodd Trucking Service: He had gone to the depot and filling station of the defendant in Bowling Green one day in May, 1944, to talk with Dodd about the purchase of a partnership interest in the business. Dodd was interested in the proposition and suggested that Ramey ascertain his status with respect to being drafted into the armed services and report back to him. It was upon his return that the accident happened.

A mechanic was engaged in taking tires off a truck in order to rotate or switch them about, and Dodd asked Ramey whether he thought the one which was then being removed was worth retreading. He stooped over to examine the tire and a steel ring flew off and struck him in the head, fracturing his skull. The truck had dual wheels on the rear. The outer wheel had been removed and the inside one was stuck or so tight that the workman, Skaggs, was hammering on the underneath side of the rim to knock it off the wheel. It was not intended to take the tire itself from the rim, but to remove it from the wheel with the tire in place. Unlike on the ordinary passenger car, on a truck of this kind the tire is held in place on the rim by a separate metal ring instead of by flanges on the rim itself. The lock-ring is held in place by the pressure of the inflated tire, and, as we understand ordinarily comes off the wheel with the rim and tire as a unit. The pounding upon the other side of the rim loosened the ring so that it was thrown off with great force by the air pressure. There is evidence that the safe way under circumstances like this is to deflate the tire before attempting to remove it with the rim and the ring from the wheel and that it is dangerous not to do so, although both methods are quite generally used.

While Dodd was not clear concerning the reason of the plaintiff's presence, he substantially conceded that he was there for the purpose he stated. Dodd denied having asked Ramey's opinion respecting the retreading of the tire. The effect of his testimony and that of Skaggs is that the plaintiff was merely standing by and curiously stooping over to watch the work, Dodd at the time turning the wheel as Skaggs was striking it. The defendant testified to a recognition of danger to a person standing before a tire being so removed.

The plaintiff's evidence clearly established his presence and status as that of an invitee at the time of the accident, since he says that he was expressly asked to return after ascertaining his draft status, and that is substantially admitted by the defendant. He says also he was specifically asked to inspect the tire then being worked on. That is denied.

Sometimes the distinction is shadowy as between the status of one as an invitee or as a licensee, but the difference in duty owing the individual at the time may be material. Initially one may be a gratuitous licensee, as by implication and without actual knowledge of his presence by the person having dominion over the premises, or coming there solely for his own purpose. In such status he does not occupy a favorable position, as the duty owing him is only negative, i. e., not to harm him wantonly or by an intentional act endangering his safety. Kentucky & W.Va. Power Co. v. Stacy, 291 Ky. 325, 164 S.W.2d 537; Brauner v. Lentz, 293 Ky. 406, 169 S.W.2d 4. But his status may be tranformed or converted into that of an invitee by actual knowledge of his presence and, as in this case (considering the defendant's testimony only), by his reception and engaging in a transaction of common interest or mutual advantage which may be consummated prospectively or presently. L. E. Meyers' Co. v. Logue's Adm'r, 212 Ky. 802, 280 S.W. 107; Shoffner v. Pilkerton, 292 Ky. 407, 166 S.W.2d 870.

Therefore, whether we look at the situation as presented by the plaintiff or the defendant it was the defendant's duty to plaintiff to exercise ordinary care for his safety and not to expose him to an unreasonable risk or to allow conditions to exist within the scope and area of the invitation which would imperil his safety or to do any act which made his use of the premises dangerous without warning him. It was the defendant's duty to conduct his business with reasonable care to avoid personal injury to his invitee and to protect him from negligence of himself or his representatives. Black Mountain Corporation v. Webb, 228 Ky. 281, 14 S.W.2d 1063; Peerless Mfg. Corp. v. Davenport, 281 Ky. 654, 136 S.W.2d 779; Kentucky & W.Va. Power Co. v. Stacy, supra; 45 C.J. 825; 38 Am.Jur., Negligence, Secs. 96, 99, 100 and 101. On the other side, the plaintiff assumed all normal and ordinary risks attendant upon the use of the premises, such as work being done there, and risks which were obvious or should have been observed in the exercise of ordinary care, measured by the knowledge and experience of the invitee. Peerless Mfg. Corp. v. Davenport, supra; 45 C.J. 837; 38 Am.Jur., Negligence, Secs. 96, 97; 24 Am.Jur., Garages, Parking Stations and Liveries, Sec. 43. The accident occurred on premises covered by the invitation and within the course of its purpose, for the business was being transacted at that point, which was on the open paving of the filling station.

On Loney v. Laramie Auto Co., 36 Wyo. 339, 255 P. 350, 53 A.L.R. 73, the plaintiff had accompanied the owner of an automobile to a garage to have a tire repaired and was left there by the owner for the purpose of paying the charges and taking the car out of the garage to an appointed place. He called the attention of the employee who had changed the tire that the ends of the lock rim were not together and that it was apparently out of place and insecurely fastened. He stooped down to get a closer view of what was wrong and while in that position the tire blew off, driving the lock rim against his face and destroying an eye. The trial court gave a peremptory instruction for the defendant upon the grounds that the plaintiff was a licensee, to whom the defendant owed no duty except not to wilfully inflict an injury upon him and that he was contributorily negligent in that he had knowingly subjected himself to the risk and danger from which the accident occurred. The judgment was reversed, the Supreme Court holding that the plaintiff occupied the status of an invitee and accordingly had the right to be protected while standing around the car at that place from any dangerous condition created or committed by the operators of the garage. The examination of the tire was regarded as merely incidental to the getting of the car and as a usual thing to do in accordance with the ordinary practice; one that might well be anticipated by the defendant and which schould not, at least in the absence of evidence showing a contrary practice, be held as a matter of law to be beyond the scope of the invitation and outside of the purpose thereof. In the matter of contributory negligence, the plaintiff was shown to be familiar with the changing of such tires and the proper methods of doing so, but it did not...