Allison v. Davidson

Action by Roy Allison, an infant, by Lawrence N. Brown, his guardian ad litem, against Roy E. Davidson and others to recover for injuries sustained when defendants' mechanic accelerated the motor of an old automobile, that plaintiff and his two companions had brought to defendants' auto repair shop, and a blade of the cooling fan flew off and struck plaintiff in the face seriously injuring him. From a judgment in favor of plaintiff, defendants appeal. AFFIRMED. REHEARING DENIED. On December 8, 1940, plaintiff and two of his companions, William Hill and John Cobell, purchased a 1930 Model A Ford used automobile, and, upon driving it from Salem to Chemawa, it started "smoking back-firing and missing." Upon their return *Page 246 to Salem, they took the automobile to defendants' garage, wherein defendants operated a repair shop. After entering the garage, plaintiff and Cobell got out of the car and Hill remained in it. Mr. Earl J. Nixon, a mechanic employed by defendants, was assigned by one of the defendants to the task of determining what had caused the trouble. The right side of the hood was raised. The record does not disclose who raised it. Nixon requested Hill to accelerate the motor which Hill did. Upon a second request by Nixon, Hill again accelerated the motor. The record is conflicting as to whether at any time after the car entered the garage the motor stopped running until the accident occurred, but it is clear that during most, if not all, of that time, the motor was idling, except at the times just mentioned when Hill accelerated it at the request of defendants' mechanic. Following the second acceleration, Hill got out of the car and joined Allison, who was standing in the rear of the repair shop. An interval passed while Mr. Nixon examined the motor and then he called plaintiff and Hill over to the car. They came to the car and plaintiff stood by the right fender facing the motor. Nixon pointed toward the water pump directly behind the fan and told plaintiff to look. Plaintiff testified that Nixon pointed toward the front of the motor and said: "Here is your trouble." As plaintiff was looking, and the testimony of Hill is to the effect that plaintiff had to bend over to look where Nixon was pointing, Nixon accelerated the motor, a blade of the fan flew off and struck plaintiff in the face cutting a gash through his nose, fracturing his upper and lower jaws, causing the loss of several teeth and the severance longitudinally of his tongue for about one half of its length. *Page 247 Errors are assigned in the refusal of the trial court to grant an involuntary nonsuit, direct a verdict for the defendants or enter judgment for defendants notwithstanding the verdict; in failing to give one instruction requested by defendants, in giving an instruction requested by plaintiff, and in using a phrase in its instructions which defendants assert was unwarranted and prejudicial. In considering the question whether an order of nonsuit, one directing a verdict for the defendants, or rendering a judgment for defendants, notwithstanding the verdict, should have been made, we must bear in mind that — "The question of negligence must be submitted to the jury as one of fact, not only where there is a conflict in the evidence with relation to the existence of the facts from which it is proposed to infer negligence, but also where there is room for difference of opinion between reasonable men as to the inferences which might fairly be drawn from conceded facts." Vol. 1, Shearman Redfield on Negligence (Revised Edition by Clarence S. Zipp) Section 42, p. 111. We have the verdict of the jury which can bear no other construction that that the required number of jurors was of the opinion that defendants were negligent, or, to state it more exactly, that defendants' mechanic was negligent and under the law his negligence was imputable to defendants. In coming to this conclusion, unquestionably the jury had in mind not only the course taken by defendants' mechanic, Mr. Nixon, but the fact that the automobile in suit was an old one and obviously outworn. This court also bases its conclusion with respect to whether there is substantial evidence tending to show *Page 248 that Nixon was negligent upon that fact as well as the other facts that the testimony tends to support. Mr. Francis W. Smith, chief boiler inspector for the State of Oregon, as a witness for plaintiff, testified on his direct examination, in answer to the following question, as follows: "Q. Would it be safe practice for an automobile mechanic to direct or permit, or both, the customer or any other person to stand in line with blades of the fan and then to cause the motor to be raced with the hood up so that the blades could fly out into the air outside the car? "A. Well, I will say that is not a safe practice." On redirect examination, Mr. Smith testified in answer to the following question, as follows: "Q. * * * State whether or not, in your opinion and assuming the following to be proved facts in the case, that a mechanic — the hood of a car or Ford Model A car is up; the motor is running; the mechanic points to the customer — points down into the front or toward the front part of the motor and says, `There is your trouble', and then the customer wanders to that place, stands, bends over and gets his face in proximity to the fan, and then the mechanic causes the motor to be highly accelerated or raced. Now, state whether or not that is the exercise of reasonable care on the part of the mechanic? Whether he is exercising due care in doing it. "A. No, he is not. No. I see what you are getting at now." Mr. Harris Lietz, as a witness for plaintiff, testified that he had had twenty-two years' experience in the repair of automobiles and for about sixteen years had been in charge of the repair work in the Valley Motor Company's shop in Salem. *Page 249 After having stated that he had warned customers a great many times not to stand in front of the fan and on the other hand there were probably times when he had not warned them, Mr. Lietz was asked the following questions and gave the following answers: "Q. Well, we will forget those lapses, because you are not on trial, but state then whether it would be, in your opinion, the exercise of reasonable care for the mechanic to direct the customer — now, I am not speaking where the customer volunteers to do that, but for him to assume a situation where he says: `Well, here is your trouble down here', and he points downward into the forward part of the motor, and the customer gets over and gets in front of the fan, and at the same time the mechanic to get hold of the rod of the carburetor and give it `the gun' so to speak, and race it. Would you call that the exercise of due care? Assuming that occurred? "A. Assuming that occurred, I would say that was not the exercise of due care. I don't think he would be deliberately subjecting the customer to danger, but it is probably one of those situations where something happened that is just too bad. "Q. Well, it wouldn't — you would say it wasn't the exercise of due care? "A. No. No, I would say there was no care exercised; just passed up." We are unable to say that there is no substantial evidence of negligence on the part of defendants' mechanic. Based upon the testimony of Mr. Smith and Mr. Lietz, the jury was warranted in finding that it was not approved practice in motor vehicle repair shops in this locality for the defendants' mechanic to accelerate the motor after inviting plaintiff to approach the automobile; and while plaintiff was in close proximity to and in line with the motion of the cooling fan without first giving plaintiff notice or warning of *Page 250 the mechanic's intention to accelerate it, or by some other means affording plaintiff notice and warning of the danger to plaintiff of such an operation. Summoning plaintiff to the automobile, asking him to look at the front of the motor, failing to caution him not to place himself in proximity to the cooling fan and, without any notice to plaintiff of his intention to do so, accelerating the motor when plaintiff was in such close proximity, are all supported by the record as the course taken by defendants' mechanic. As shown by the answer of Mr. Lietz, last above quoted, and in the testimony of Mr. Smith, in the opinion of experienced mechanics, there was an absence of due care which is another name for negligence on the part of defendants' mechanic. The testimony of these experts, to which reference has been made, was received without objection. We cannot say that it was lacking in evidentiary value. On cross-examination, Mr. Virgil Gearhart, assistant shop foreman of the Valley Motor Company, of Salem, who was called as a witness in behalf of defendants, testified as follows: "Q. You don't mean to tell this jury that you say it is a safe practice in demonstrating any part there to have a customer get his face down near the fan and race the motor in an old jalopy? "A. No, I wouldn't say it is safe. "Q. Would you say as a general practice it is unsafe? "A. Yes, if you want to put it that way, I would say it is unsafe. The motor block might blow up. We have had them break. "Q. Yes, it is unsafe in an old jalopy. Anything might happen to the mechanical part of that. "A. Yes, it might happen. Anything could happen to one of them. *Page 251 "Q. You could expect anything, couldn't you? "A. Very few things can't happen to them. * * * *" Mr. Gearhart also answered the following question as follows: "Q. * * * * You won't say here to these ladies and gentlemen of the jury that it is a safe practice to have a person at right angles to the axis of a fan in an old jalopy, and with his face near that, and speed the motor up. "A. No, I wouldn't say it was safe." Further on in his cross-examination Mr. Gearhart said: "Of course, it isn't good practice to stand in front of any moving object." He was then further cross-examined as follows: "Q. You don't recommend that to the customers of the Valley Motor Company, to stand in front of any moving part? "A. No, we don't. "Q. And you wouldn't think it is the exercise of due care to do that? "A. No, we try to keep everybody safe." From the foregoing excerpt of Mr. Gearhart's testimony, it is obvious that distinction was clearly made from the witness stand between an old outworn automobile and a comparatively new one with respect to the question at issue here. Error is assigned in the giving of the following instruction to the jury: "Although the operator of a public garage and repair shop is not the insurer of the safety of a customer therein, he owed to such customer the duty of exercising reasonable or ordinary care for his safety, and is liable for injury resulting from a *Page 252 breach of such duty. In this case it is for you to determine whether or not defendants breached such duty in any of the particulars charged in the complaint, and, if so, whether or not such breach proximately caused plaintiff's injuries." It is argued that the above quoted excerpt from the court's instruction was an abstract statement of law which had no reference to any issue of fact capable of submission to the jury under the pleadings and evidence in the case. It is also urged that it was misleading and took from the jury a specification essential to the determination of negligence under the circumstances in the case in that it failed to state that the test of reasonable or ordinary care in this case involved a determination by the jury of whether the appellants knew or should have known that the cooling fan or some other part of the car was apt to break at any time, and, more particularly, whether appellants knew or should have known that the cooling fan blade which broke was partially broken through at the time the car was driven into the appellants' garage for repairs. It would have been improper for the trial court to incorporate in its instructions an assumption that the cooling fan blade, which struck plaintiff, was partially broken through at the time the car was driven into defendants' garage for repairs. There was evidence introduced by defendants to that effect, but the blade itself was not produced. There was also evidence to the effect that moving parts, such as the blade of a cooling fan, crystallize to the breaking point. The jury were the exclusive judges of the question whether the blade had been partially broken or had merely crystallized to the breaking point. In construing the instruction under consideration, it must be examined together with the other parts of *Page 253 the court's instruction upon the same phase of the case. To this end, we quote the entire paragraph of which the instruction under consideration is a part. "When an act or action is negligent, it is not necessary to render it the proximate cause that the person could or might have foreseen the particular consequence or precise form of the injury, or the particular manner in which it occurred, if, by the exercise of reasonable care it might have been foreseen or anticipated that some injury might result. It is sufficient that the consequence attributed to the negligent act or omission was the natural and probable result thereof, although it might not have been specifically contemplated or anticipated. Although the operator of a public garage and repair shop is not the insurer of the safety of a customer therein, he owes to such customer the duty of exercising reasonable or ordinary care for his safety, and is liable for injury resulting from a breach of such duty. In this case it is for you to determine whether or not defendants breached such duty in any of the particulars charged in the complaint, and, if so, whether or not such breach approximately [proximately] caused plaintiff's injuries. An injury that is a natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury, but an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause or no cause whatever of the injury. An injury that results from an act of negligence, but that could not have been foreseen or reasonably anticipated as its probable consequence, and that would not have resulted from it, had not the interposition of some new and independent cause interrupted the natural sequence of events, turned aside their course, and produced it, is not actionable. Such an act of negligence is the remote and an independent intervening cause is the proximate *Page 254 cause of the injury. It is not enough to prove that the accident is the natural consequence of the negligence; it must also have been the probable consequence. A natural consequence of an act is the consequence which ordinarily follows it; the result which may be reasonably anticipated from it. A probable consequence is one that is more likely to follow a supposed cause than it is to fail to follow it." A short paragraph of less than seven typewritten lines follows the last quoted portion of the instructions and this is followed by — "If it shall appear to you from the evidence that the detaching of the fan blade was a thing that could not have been foreseen or reasonably anticipated by defendants' employee, then your verdict will be for the defendants. It is not sufficient that it be established that the detaching of the blade while the motor and fan were in operation was the natural result of such operation. Plaintiff must prove to you by a preponderance of the evidence that the detaching of the blade under such circumstances was the probable consequence of such operation of the motor and fan. A probable consequence is one that is more likely to follow the supposed cause than it is to fail to follow it." No error was committed in giving the instruction first hereinabove quoted in connection with the other instructions given. Error is also assigned upon the following phrase used by the court in its instructions while stating the issues as disclosed by the complaint of plaintiff and defendants' answer: "Opportunity for which observation has been afforded by defendants, or some one elses (identity to plaintiff unknown) theretofore having raised the *Page 255 hood or covering over said motor, so that it was exposed and open to view." This is the language of plaintiff's complaint as amended by interlineation at the close of plaintiff's case in chief; and, in the instruction of the court, it, together with the remainder of plaintiff's allegations of negligence, was used to advise the jury of plaintiff's charge of negligence against defendants. The denial of negligence by defendants, as set forth in their answer, was stated in the trial court's instructions. The phrase in question simply means that the hood or covering over the motor theretofore had been raised by some one whose identity is unknown, thereby exposing the motor to view. Admittedly such a course had been taken. No error was committed by the trial court in using the criticized phrase above quoted. The trial court defined negligence as follows: "Negligence in this case would be the failure to do that which a reasonably prudent person would have done under the circumstances, or the doing of something which a reasonably prudent person would not have done under the circumstances." Defendants requested the court to define negligence thus: "Negligence may be defined as the failure to do that which a reasonably prudent person, guided by those considerations which ordinarily regulate the conduct of human affairs, would have done under the circumstances, or the doing of something, which under the circumstances, a reasonably prudent person would not have done." It is not clear to the writer why guidance "by those considerations which ordinarily regulate the conduct of human affairs" is essential in determining whether *Page 256 a failure or omission to do something constituted negligence, while in giving consideration to the question whether an act of commission is negligent no such guidance need be invoked. The deletion of the phrase just quoted from defendants' requested instruction was not reversible error. The judgment of the circuit court is affirmed.