Mosher v. Anton G. Hanson Co.
| Decision Date | 21 December 1934 |
| Docket Number | 30,106 |
| Citation | 258 N.W. 158,193 Minn. 115 |
| Parties | C. B. MOSHER v. ANTON G. HANSON COMPANY AND OTHERS |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by the father of Donald Mosher, a minor, to recover for injuries to the latter alleged to have been caused by negligence in the maintenance of a public garage owned by defendant Anton G. Hanson Company and leased by defendant E. O. Reiten, whose insurer is the defendant Aetna Casualty & Surety Company. The case was tried before Frank E. Reed, Judge, and a jury. Plaintiff appealed from an order denying his motion for a new trial after a verdict was directed for defendants. Affirmed.
Negligence -- injury to child from fall into auto greasing pit -- licensee -- duty of owner to keep premises safe.
A two and a half year old child accompanied his father into a garage where the father was to have his car repaired. The father went to the garage office to talk with the proprietor taking his son with him. While there the child wandered into the other part of the garage, fell into a grease pit, and received severe injuries. It is held that regardless of whether the child was in the first instance and invitee or a licensee, when he wandered off into the other part of the garage he became merely a licensee toward whom no duty was owed to keep the premises safe. The child took the premises as he found them and cannot recover, for defendants owed no duty to guard the premises further than had been done.
R. H Fryberger, for appellant.
Cobb, Hoke, Benson, Krause & Faegre, for respondents.
Negligence action for personal injuries sustained by Donald Mosher, a minor, when he fell into a grease pit in a public garage. The action is brought by C. B. Mosher, Donald's father and natural guardian. There are three defendants, Anton G. Hanson Company, the owner of the garage, E. O. Reiten, the lessee of the garage, and the Aetna Casualty & Surety Company, the lessee's insurer. At the close of the trial the court directed a verdict against plaintiff and in favor of all three defendants. From a denial of his motion for a new trial plaintiff appeals to this court.
It appears that on the morning of August 13, 1932, plaintiff drove his car into the garage here involved for repairs. He was accompanied by his son Donald, then two years and seven months of age. For the sake of clarity, a plat of the garage is appended hereto.
Plaintiff drove in the door marked "A" and to the rear or north end of the garage, where the workshop was located. Plaintiff stopped and got out of the car approximately at the spot marked "B" and talked with defendant Reiten, the lessee of the garage. Donald remained in the car temporarily. After some conversation, plaintiff and Reiten went to the office through the door marked "C" to transact business. Plaintiff took Donald with him. While in the office Donald apparently wandered out of the office and back into the other part of the garage. About two minutes later defendant Reiten ran from the office to the grease pit marked "D". Donald was lying at the bottom of the pit unconscious. He was rushed to a hospital. Later it was learned he had received a fractured [See Illustration In Original] skull. There is no evidence as to how Donald came to fall into the pit.
Plaintiff's claim of negligence is based in general on the manner in which this grease pit was maintained and on the fact that this pit was open and unguarded. It will appear from the plat that there are two pits. Pit "E" was covered over with boards. Pit "D" was open. As can be seen, pit "D," into which Donald fell, is but a few feet from an outside door and is open and unguarded on the end farthest inside the garage. A pipe rail about three feet above the level of the floor runs alongside this pit and along the end of pit "E." The pit is approximately five and one-half feet deep and three and one-half feet wide. It was testified that this pit usually was used three or four times a day and that oil and grease dripping from the various cars often remained on the sides and around the edges of the pit. There are guides five and one-half inches high and three inches wide on either side of both pits to guide the wheels of automobiles as they run over the pit. At the inward end of pit "D" a provision is made for a removable pipe rail. This frequently is taken out and left out so that cars may be driven from the pit into the garage or vice versa. At the time of Donald's fall there was no car on the pit, and the outside door behind pit "D" was open. It appears that this pipe rail, which is three feet high, had no guard under it to prevent children from getting under the rail and into the pit.
Only one question is presented. Did either or any of the three defendants violate a duty owed Donald so as to make the question of negligence one for the jury?
Under the view we take of this case, it becomes unimportant to determine whether Donald in coming onto the premises originally in the company of his father was a licensee or an invitee....
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