Mellon v. Kelly

• Decision Date: 28 January 1935
• Docket Number: 7316.
• Citation: Mellon v. Kelly, 99 Mont. 10, 41 P.2d 49 (Mont. 1935)
• Parties: MELLON v. KELLY et al.
• Court: Montana Supreme Court

41 P.2d 49

99 Mont. 10

MELLON v. KELLY et al.

No. 7316.

Supreme Court of Montana

January 28, 1935

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Action by J. H. Mellon against John Kelly and the Montana Auto & Garage Company.From a judgment for plaintiff against both defendants, the defendants separately appeal.

Order in accordance with opinion.

John K Claxton, of Butte, for appellant Kelly.

Earle N. Genzberger, of Butte, for appellantMontana Auto & Garage Co.

P. E Geagan and George W. Howard, both of Butte, for respondent.

ANDERSON Justice.

Plaintiff brought this action to recover for personal injuries sustained by him, resulting from the collision of an automobile, the property of the defendant Kelly, occurring in the garage of the defendantMontana Auto & Garage Company.

In his complaint plaintiff charged the defendants with negligence, in "that they failed to keep any proper lookout for the presence of other persons or automobiles upon the floor of the said garage; that they failed to give to this plaintiff any warning of the approach of the said automobile of the defendant Kelly; that they started and put in motion the said Packard automobile without having the same under proper control, so as to avoid striking this plaintiff or the automobile of plaintiff, and that they failed to manage, operate and control the automobile of the defendant Kelly, so as to prevent the same running into and striking this plaintiff, and the automobile of plaintiff, while the plaintiff and his said automobile were in the garage of the said defendant corporation, and standing on the floor thereof, and in so managing, operating and handling said automobile of the said defendant Kelly, that the same was done without due regard to the safety of the life, limb and property of this plaintiff, while he was rightfully in the said garage."

The defendants filed separate answers, and on the trial of the cause each was represented by different counsel.A trial was had, resulting in a verdict and judgment of $10,000 against both defendants.Separate motions for new trial on behalf of each of the defendants were made, heard, and denied.Defendants have separately appealed from the judgment.

On October 5, 1932, plaintiff stored his automobile in the garage of the defendant corporation in Butte.Later in the day he returned to the garage for the purpose of securing the automobile.He surrendered his claim check to a floorman, and his automobile was brought out into the runway in the garage.In the meantime plaintiff, together with a salesman there employed, viewed some cars in the salesroom of the garage and returned to plaintiff's car, still located in this runway, and were there standing by its side facing one another engaged in conversation with reference to a proposed exchange of automobiles at the time of the accident.

The defendant Kelly was the owner of a Packard automobile, which he regularly stored in the garage, and which, at this particular time, was parked in a space regularly used for the storage of automobiles when not in use.It was parked at an angle of 80 degrees with reference to the car of plaintiff.Kelly attempted to start his automobile, and, being unsuccessful, called a floorman, whom he requested to secure gas and fill the vacuum tank.This floorman raised the hood on the car and took the plug out of the vacuum tank.Kelly at that time was standing along the right-hand side of the car.The floorman testified that he did not look inside the car and did not know whether it was in or out of gear.He made no investigation to ascertain if there was any gasoline in the automobile; thereupon he went to secure gasoline to fill the vacuum tank.He further testified that he was familiar with the method of starting a Packard car, and that none of the various operations performed by him would start this particular automobile; that he was at the gas pump when he heard the car start; that the sound was like any ordinary motor starting up.This Packard automobile was seen approaching the car of the plaintiff by the salesman when about four feet distant from the side of plaintiff's car.It collided with it, injuring plaintiff.The nature and extent of his injuries will be the matter of further discussion later.

The floor of the garage was almost level, with a very slight slope in the direction from the place where the Packard automobile was parked toward the location of plaintiff's car.The floorman testified that, if the brakes were released on the Packard automobile and the car out of gear, it would not, unless pushed, roll down over the course traveled by it, resulting in the collision.He based this opinion upon his observations while working in the garage, stating that no car had ever rolled on this floor under similar circumstances.The salesman expressed the opinion that the engine must have been running, propelling the car forward at the time he first observed it immediately preceding the collision, basing his opinion upon the rate of speed, as he stated it was traveling too fast for the car to be merely rolling forward.

It was testified that immediately following the accident plaintiff said, "What in hell did you do that for?" to which Kelly replied, "I didn't do that on purpose."The Packard car was pushed backward to release plaintiff from his position between the two cars.No one assisting in this movement was able to testify whether the Packard car was in or out of gear at the time.

Plaintiff was removed to the hospital, and testified that Mr. Kelly came to see him there and told him he was sorry for the accident, and said, "We were trying to start the car down there and it got away from me."The other evidence offered as a part of plaintiff's case related to the nature and extent of the injuries suffered by plaintiff and the damages sustained by him.

At the close of plaintiff's case, and after plaintiff had announced that he rested, counsel for the defendant garage company rested and attempted to make a motion for a directed verdict.The trial court refused to permit the making of this motion at that time.

Counsel for the defendant Kelly made a motion for a nonsuit, which was denied.Evidence was then offered in support of the answer of Kelly, who testified in person as to his attempt to start his car, and his request to the floorman to put gas into the vacuum tank.He did not recall what answers were made to questions put to him at the hospital.He testified that at the time the car started he was reaching through the right-hand door into the car for the purpose of turning the ignition switch, but did not touch the control before he heard the car go "puff, puff, puff."He was dragged forward with the car, and the crash ensued.He did not know whether at the time the brake was on, but testified that his usual procedure in starting was to get into the car and release the brake, and he did not know whether the car was in or out of gear.

At the close of all the testimony, separate motions for directed verdict were made by each of the defendants and denied by the court.

The defendant garage company assigns error upon the failure of the trial court to hear its motion after it had rested and before the evidence offered by the defendant Kelly was received, and also on the ruling denying the motion when it was ultimately made.

The evidence offered by the defendant Kelly in no wise added to the strength of plaintiff's case as against the defendant garage company.The company, after its rest, made no attempt to offer further evidence, nor did it do anything to in any way waive the effect of its rest.The rule appears to be well-nigh universal that a defendant may at any time after the plaintiff has rested his case, upon resting his own, make a motion for a directed verdict.2 Bancroft on Code Pleading & Practice, p. 1915;64 C.J. 431.The trial court was in error in refusing to permit defendant garage company to make a motion for a directed verdict after it had announced its rest.However, the error was harmless in this case.

This court has often announced the rule that upon motion for nonsuit or directed verdict the evidence must be viewed from the standpoint most favorable to plaintiff, and every fact must be deemed proved which the evidence tends to prove.Nangle v. Northern Pacific Ry. Co.,96 Mont. 512, 32 P.2d 11.No case should ever be withdrawn from the jury when reasonable men might draw different conclusions from the evidence.Id.

The owner of a store is in duty bound to exercise ordinary care to keep his premises safe for patrons and to warn them of any hidden or lurking danger on the premises (Robinson v. F. W. Woolworth Co.,80 Mont. 431, 261 P. 253); but he is not an insurer against all accidents and injuries to such persons while there (S. S. Kresge Co. v. Fader,116 Ohio St. 718, 158 N.E. 174, 58 A. L. R. 132).These rules apply to the keeper of a garage.Campbell v. Sutliff,193 Wis. 370, 214 N.W. 374, 53 A. L. R. 771.

The evidence here discloses that the Packard automobile did not roll down over the floor of the garage merely because the brake was released and the car thrown out of gear.The floorman, the employee of the defendant garage company, did nothing in his operations in connection with the car which would have caused it to start.An inference of negligence cannot be drawn from the bare fact that an injury occurs.Lyon v. Chicago, M. & St. Paul R. Co.,50 Mont. 532, 148 P. 386.However, negligence may be established by circumstantial evidence.Harrington v. H. D. Lee Merc. Co.,97 Mont. 40, 33 P.2d 553, 559;Fusselman v. Yellowstone Valley L. & I. Co.,53 Mont. 254, 163 P. 473, Ann. Cas. 1918B, 420;Childers v. Deschamps,87 Mont. 505, 290 P. 261.

No...