Loney v. Laramie Auto Co.

• Decision Date: 26 April 1927
• Docket Number: 1320
• Citation: 255 P. 350,36 Wyo. 339
• Parties: LONEY v. LARAMIE AUTO CO. [*]
• Court: Wyoming Supreme Court

255 P. 350

36 Wyo. 339

LONEY v. LARAMIE AUTO CO. ^[*]

No. 1320

Supreme Court of Wyoming

April 26, 1927

ERROR to District Court, Albany County; WILLIAM A. RINER, Judge.

Action by W. C. Loney against the Laramie Auto Company. Judgment for defendant, and plaintiff brings error.

Reversed and Remanded.

Herbert M. Baker, and F. E. Anderson, for plaintiff in error.

The Court erred in directing a verdict for defendant; the rule attempted to be invoked by defendant, is stated in 29 Cyc 442, that no duty exists towards trespassers except that of refraining from wantonly or willfully injuring them; but the rule is not universally adopted; Birge v. Gardner, 19 Conn. 507; Norris v. Litchvield, 35 N.H. 271; Kerwhaker v. Ry. Co., 3 Ohio St. 172. Where it is shown that the owner or occupant could have prevented the injury by ordinary care, plaintiff may recover; 20 R. C. L 59; Express Co. v. Williamson, 66 Fla. 286; Jewison v. Dieudonne, (Minn.) 149 N.W. 20. The case at bar differs from the above cases in that the injury was not inflicted through any defect in defendant's premises or by reason of plaintiff being near work carried on by defendant or his servants; the injury was caused by the explosion of an auto tire that had been repaired by defendant's servant; plaintiff was hurt by a dangerous instrumentality set in motion through defendant's negligence; Mining Co. v. Robertson, 22 Colo. 491; Means v. Ry. Co., 144 Cal. 473; 1 Ann. Cas. 206; Fitzpatrick v. Penfield, (Pa.) 109 A. 653; Herrick v. Wixon, (Mich.) 80 N.W. 117; Lowe v. City, (Utah.) 57 Am. St. Rep. 708. Oil Co. v. Ginn, (Okla.) 212 P. 314; Iron Co. v. Bush, (Ala.) 86 So. 541. Plaintiff was an invitee; 29 Cyc. 451; 20 R. C. L. 69; Glaser v. Rothschild, (Mo.) 120 S.W. 129; Pauckner v. Wakem, 231 Ill. 276; 14 L. R. A. N. S. 1119-1122; Kinsey v. Locomobile Co., (Pa.) 83 A. 262. Plaintiff was lawfully in the garage of defendant upon an errand connected with defendant's business, and was an invitee; he was not guilty of contributory negligence; 20 R. C. L. 166; Emery v. Ry. Co., (N. C.) 15 L. R. A. 332; McCracken v. Smathers, (N. C.) 26 S.E. 157. If the evidence tended to prove negligence on the part of defendant, as the proximate cause of injury, the question should be submitted to the jury; Ry. Co. v. Cook, 18 Wyo. 43. If plaintiff was a technical trespasser, he is entitled to recover; but plaintiff was an invitee; there is no justification for directing a verdict on the ground that plaintiff was negligent, as the evidence shows that the plaintiff was not negligent.

Corthell, McCollough and Corthell, for defendant in error.

Plaintiff's injury was the result of his own negligence; Ry. Co. v. Cook, 18 Wyo. 43; 29 Cyc. 513, 515. Plaintiff placed himself in a dangerous position and failed to exercise reasonable care; De Honey v. Harding, 300 F. 696; Sherris v. Ry. Co., (Mont.) 175 P. 269; Bonanomi v. Purcell, (Mo.) 230 S.W. 120. The circumstances attending the injury, as shown by plaintiff's evidence, shows a presumption that he was not exercising due care; he failed to make out a case for the jury; George v. Ry. Co., (Mont.) 196 P. 869; Holland v. Co., (Mont.) 234 P. 284; 29 Cyc. 507-511. Where the facts are undisputed, negligence is a question of law for the court; Ry. Co. v. Brown, (Kan.) 84 P. 1026; Klinker v. Co., (W. Va.) 27 S.E. 237; Wardlaw v. Ry. Co., (Calif.) 42 P. 1075. Evidence, positive and not disputed, should be taken as an established fact; Kahn v. Co., 4 Wyo. 419. It was the duty of the court to peremptorily instruct for defendant; Boswell v. Bank, 16 Wyo. 161; Lawrence v. Ry. Co., (Utah) 174 P. 817; Buboltz v. Ry. Co., (S. D.) 199 N.W. 782; Testo v. Ry. Co., (Ida. ) 203 P. 1065. Allied cases are those of passengers alighting from moving trains; Hewes v. Ry. Co., 217 Ill. 500; standing on railroad track without looking for trains; Dunworth v. Ry. Co., 133 F. 307; crossing car track without looking; O'Callaghan v. Ry. Co., (Mass.) 144 N.E. 74; stepping out from behind street car without looking for cars on another track; Doyle v. Ry. Co., (Mass.) 142 N.E. 693; crossing the street diagonally in front of an automobile; Maddox v. Gray, (Wash.) 222 P. 470; climbing over the couplings of a standing train; Studer v. Ry. Co., (Cal.) 53 P. 942; and numerous situations showing contributory negligence; a plaintiff cannot hide his own fault behind a cloak of ignorance, inadvertence or a pretense that he has used due care; Ry. Co. v. Skinner, (Va.) 89 S.E. 887; Brommer v. Ry. Co., 179 F. 577; Parramore v. Ry. Co., 5 F. 2d, 912. Defendant showed plaintiff no active duty; no breach of legal duty was shown; 38 Cyc. 418; Hines v. Sweeney, 28 Wyo. 57; Gillespie v. Co., 22 Wyo. 331; Winterbottom v. Wright, 10 M. & W. 109; Losee v. Clute, 51 N.Y. 494; Bank v. Ward, 100 U.S. 195; Safe Co. v. Ward, 46 N. J. L. 19; Earl v. Lubbock, 1 K. B. 253. There is no pretence that plaintiff stood in the relation of an invitee, unless he became such by calling for the car after the repair was made; the evidence did not place him in the status of an invitee; on the contrary, it placed him in the attitude of a licensee and, as such, the only duty defendant owed him was not to wilfully or wantonly injure him; Murphy v. Huntley, (Mass.) 146 N.E. 710; Fleckenstein v. Co., 102 A. 700; Watson v. Ry. Co., (Colo.) 92 P. 17; 20 Cyc. 449; 2 Shearman and Redfield on Negligence, 584.

Herbert M. Baker, and F. E. Anderson, in reply.

Questions of contributory negligence are exclusively within the province of the jury; Ry. Co. v. Berry, (Ind.) 35 N.E. 565. The rule in the Cook case is correct as applied to the facts of that case; if reasonable men would differ, as to the effect of undisputed evidence, it should be submitted to the jury; Ry. Co. v. Brown, (Kan.) 34 P. 1026; Rainse v. Ry. Co., (W. Va.) 19 S.E. 571; Klinker v. Iron Co., 27 S.E. 237; Wardlaw v. Ry. Co., 42 P. 1075. There was no contributory negligence on the part of plaintiff, for the reason that defects or dangers were not apparent; defendant bore a contractural relation to plaintiff, and violated a duty which it owed to plaintiff; this constituted actionable negligence; Hinds v. Sweeney, 28 Wyo. 57; 48 L. R. A. N. S. 213; Necker v. Harvey, 14 N.W. 503; 29 Cyc. 425; Tomlinson v. Co., 75 N. J. L. 748; 19 L. R. A. N. S. 923, and note. The correct rule as to the liability to an invitee is stated in McCaffrey v. Mossberg Mfg. Co., 23 R. I. 381, 50 A. 651. Plaintiff was an invitee; defendant's establishment was one where the public was invited to transact business with the owner; plaintiff went to get his car, believing the tire to have been properly repaired, and was there on an errand connected with business in which he stood in a contractural relation with defendant; Construction Co. v. Crawford, 87 N.W. 223.

Before BLUME, Chief Justice, POTTER, Justice, and KIMBALL, Justice. POTTER, J., and KIMBALL, J., concur.

OPINION

BLUME, Chief Justice.

The case appears to involve a rather unusual accident. Five persons, including the plaintiff and Mr. Baker, were on their way from Greeley to the Platte Valley on a fishing trip. They were traveling in two cars, one driven by the plaintiff and the other by Mr. Baker. On their way they stopped at Laramie to replenish their supplies and get lunch. It was discovered that Mr. Baker's car had a flat tire and he drove the car into the defendant's garage at Laramie to have the tire repaired. There is sufficient evidence in the record before us to make it a question of fact whether the defendant undertook the repair of the tire. Mr. Leake, a young man, was assigned to do so. It developed that the tire was rusted on, was difficult to get off, and it took some time before that was accomplished. Some or all of the parties above mentioned assisted in this work. After the tire was taken off, Mr. Baker, the owner of the car, went to lunch and left plaintiff at the garage for the purpose of paying whatever charges there might be for the repair of the car, and to take the car out of the garage to a place agreed upon. When Mr. Leake had fixed the tire, and put it back onto the wheel, the plaintiff noticed that the flap had not been put in and called Leake's attention to that fact, who thereupon took the tire off again, put the flap in and again put on the tire. When that was done, plaintiff noticed that the ends of the lock-rim were about two inches apart and apparently were reversed, out of place and insecurely fastened. He called to Leake that the rim had not been put on right, looked down to "get a closer view of what was wrong" and, while doing so, the tire blew off, driving the lock-rim against his face and severely injuring his eye, as a result of which he subsequently lost it. Upon the close of plaintiff's testimony, and before the defendant had put any witnesses upon the stand, the court, upon motion directed a verdict in favor of the defendant, upon the grounds, first: "That the defendant owed no duty to the plaintiff, except the duty not to wantonly or willfully inflict an injury upon him, inasmuch as he was at best a mere licensee and did not stand in any contractual relation;" second, "that the plaintiff himself was guilty of contributory negligence, in that he knowingly subjected himself to the risk and danger from which the accident resulted." From the judgment entered upon the directed verdict, the plaintiff has appealed. The parties will be named herein as in the court below. The only points argued herein are whether the court was right in directing a verdict upon the grounds above mentioned, and we shall accordingly discuss these points in the order in which they have been stated above.

1. Counsel for the defendant argue that plaintiff had no contractual relations with the defendant, and that the latter,...