Plaintiff Thomas R. Cunningham, then seventeen years of age, was seriously injured on premises occupied and used by defendant Kenneth L. Hayes in the conduct of his auto salvage business. Suit was brought on the minor’s behalf, as well as their own, by his parents. Verdicts total-ling $15,000 were returned for plaintiffs and judgment was entered accordingly. Thereafter, the trial court, having concluded it had committed error both in having failed to instruct on measure of damages and in having failed to define “negligence” as used in plaintiffs’ verdict-directing instructions, ordered a new trial on defendant’s motion. Plaintiffs appeal from that judgment. Defendant Hayes appeals from the denial of his alternative motion to have judgment entered in accordance with his motion for directed verdict.
Defendant’s business premises, located in the City of Marshall, Missouri, consisted of an office and ten acre expanse used as a salvage yard. No barrier separated them, so there was unimpeded access from the office, located at one end of the yard, to the yard itself. The record does not disclose any other physical characteristics of the premises, but none is needed for an informed determinatiоn of the issues.
The minor plaintiff, Thomas, had purchased the frame of a dune buggy (a vehicular contrivance of sorts) and had arranged with defendant to remove the engine from it. The price had been settled on. Since it was to have been available on the day of the casualty, plaintiff had come to see about delivery. (Actually, the work had not yet been done.) When he arrived at defendant’s office, both defendant and Gary, his minor son then in his employ, were there, but before plaintiff’s business could be acted on, another customer inquired after a gas tank and muffler from a 1959 Ford. Defеndant told Gary to fetch those parts from the salvage yard. Quick to do as bidden, Gary went from the office onto the adjoining yard, accompanied by Thomas who had not been expressly invited to so do. (Thomas and Gary, obviously acquainted, were classmates.) Thomas had heard defendant’s direction to Gary and was aware that Gary’s intended purpose in going onto the salvage yard had only to do with parts from a 1959 Ford and nothing to do with his dune buggy. Nevertheless, since Gary had not explicitly told him he should not, and otherwise piqued by curiosity, Thomas followed him, the two of them “just talking” as he did. The nature and sеquence of these events are not questioned. The balance of the testimony given both by Thomas and Gary bearing on the occurrence, although equally compatible, is best treated separately.
The minor plaintiff testified that he previously had been to defendant’s premises on at least two or three occasions to purchase automobile parts and at those times had seen customers “at the salvage yard * * * back in the yard sometimes”. On the day of the casualty, the 1959 Ford from which parts were to be retrieved was
Gary testified that he had worked in his father’s salvage business for more than two years preceding the occurrence. During that time, at his father’s direction, he had “hooked up cars on this wrecker * * * and lifted tjiem up several times before”. He acknowledged that customers were not permitted to “walk about the yard”, unless accompanied by an employee. As to the salvage procedure involving the 1959 Ford, he had “just wrapped the cable around the frame and hooked the hook around the cable”, as he had done times before. He then lifted the car, and as a safety precaution placed two or three wheels under it “just in front of the rear end”. The car was left “raised in the air”. He crawled under the car and was so placed that he was looking up at “the underside of the car”. Although he could not see Thomas from there, he had been talking to him and could tell he was at the rear of the car. Gary commenced loosening the bolts and clamps around the muffler and as he did, the car fell. Not until then did he realize that Thomas had been underneath the car and was now pinned by it to the ground. Gary came around, found that the cable had “come unhooked”, refastened it, raised the car once again and extricated Thomas. Gary had no idea why the car fell.
Defendant Hayes’ appeal raises the issue whether the trial court erred in failing to enter judgment for defendant in accordance with his motion for directed verdict which asserted only: “(U)pon the facts and law plaintiffs have shown no right to relief”. So, the decisive question is: Does the evidence raise a duty to plaintiffs, a breach of which is shown? If so, may plaintiffs recover for such breach under res ipsa loquitur, pleaded and submitted?
Under Missouri decisions, the status of a person going upon land in the possession of another, in most instances, continues to be decisive in the determination of the duty owed him by the possessor. Wolfson v. Chelist, Mo.,
Defendant Hayes contends that at the time and place of injury, the minor plaintiff was a “mere licensee” because he had gone beyond the bounds of his invitation. Therefore, he suggests, plaintiff took the premises as he found them and “the only duty owed to a licensee is not to actively cause him injury”. 1 Cognately, he argues, since he owed no duty of ordinary сare to the minor plaintiff, the res ipsa lo-quitur submissions of the plaintiffs — allowing the jury to infer the existence and breach of such a duty — were improper.
This argument presupposes plaintiffs seek recovery for injury caused by a
condition
on defendant’s land — that is, because of defendant’s passive negligence. On the contrary, plaintiffs’ pleadings, evidence and submissions were all calculated to charge, prove and convict defendant of active negligence. “Active or affirmative negligence has been defined as negligence occurring in connection with activities cоnducted on the premises * * * whereas, passive negligence is negligence that causes danger by
In this case, defendant’s negligence was of the operational or active kind. There is no evidence which suggests that the minor plaintiff was imperiled by any condition of the premises. He was injured, as no one doubts, when the raised car fell on him. The hoisting of cars, we know, is a normal activity of salvage operations. As defendant’s brief with laconic directness expresses it: “A salvage yard is just what its namе implies. The salvage business necessarily requires the raising of old vehicles to remove parts * * * Nor does any evidence contradict that Gary, defendant’s employee and agent, was aware of plaintiff’s presence in the immediate area of the salvage operation. They had engaged in uninterrupted conversation from the moment they left the office in each other’s company until the casualty occurred. The evidence justified the submission of defendant’s active negligence, and because it did, we need not labor discussion to settle plaintiff’s techniсal status. For whether as invitee or licensee, defendant owed him the duty to refrain from inflicting injury by his affirmative act of negligence. Robidoux v. Busch,
Even sо, no actionable duty is established against a possessor in such cases in the absence of evidence that the dangerous condition, although known to the possessor-defendant, was unknown to the plaintiff. There is no liability for an injury from a danger which was obvious or as well known to the entrant as to the possessor. Cupp v. Montgomery,
Whether the doctrine is applicable in a given case is a question of law, for it is a judicial function to determine whether certain circumstances, as a matter of law, permit a certain inference. Parlow v. Dan Hamm Drayage Co., Mo.,
The evidence was undisputed that Gary (and through him, defendant) not only
Defendant directs the force of his argument against the remaining, and basic, element of the doctrine. He questions that the fall of the car and plaintiff’s consequent injury were such an unusual occurrence under the circumstances as to give rise to an inference of negligence. This, too, is a question of law, and the legitimacy of the trial court’s inference of negligence is to be determined by whether, more probably than not, an injury under the circumstances in evidence does not result unless accompanied by some form of negligence. Epps v. Ragsdаle, 1.c. 800 [3,4]; Copher v. Barbee, Mo.App.,
Ever since that celebrated barrel of flour rolled out оf a warehouse window and fell upon a passing pedestrian,
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courts have frequently found inference of negligence, and applied the doctrine of res ipsa loqui-tur, when injury has resulted from falling objects. Within this vest category of physical cause, an almost infinite variety of cases have been decided, each upon its own circumstances. See, among others, Layton v. Palmer, Mo.,
As it turns out, defendant’s argument is entirely hypothetical. The occurrence and injury raise neither probabilities nor inferences in equipoise; rather, they speak clearly of defendant’s negligence. In common experience, a car secured by cable and hook to the hoisting apparatus of a wrecker, then raised above the ground and held in position for removal of salvage, does not fall in the absence of negligence. And because these instrumentalities were in the exclusive control and management of defendant, it became sufficiently probable that the negligence was that of defendant as to permit a jury to make that finding. This probability was made more compelling by evidence (defendant’s own) that: (1) in the course of the occurrence resulting in plaintiff’s injury, the car and cable had come “unhooked”, and (2) Gary, whom defendant had put in exclusive control and management of the instrumentalities of injury, had not only used them safely on numerous previous occasions,. but also when he extricated plaintiff immediately after the car’s fall. Nor do we agree with defendant’s apparent contention that any inference of his nеgligence was defeated, as a matter of law, by Gary’s testimony that he could not explain why the car fell. “ ‘(A) substantial factual inference of defendant’s negligence * * * amounts to evidence as distinguished from a mere procedural presumption, (and) does not disappear upon the submission of evidence tending to exculpate defendant, but remains in the case as evidence sufficient to support an affirmative finding for plaintiff’ ”. Adam Hat Stores, Inc. v. Kansas City, 316 S.W.2d l. c. 598 [3-5]. The uncontradicted evidence establishes a duty of ordinary care owed plaintiffs and breached by defendаnt, properly provable under res ipsa loquitur.
Defendant next urges that the trial court should have entered judgment in accordance with his motion for directed verdict because, as a matter of law, the minor plaintiff was both contributorily negligent and had assumed the risk of injury by having voluntarily exposed himself to the known and appreciated danger that a car suspended, in the manner of the 1959 Ford, might fall. Neither point was raised in defendant’s motion for directed verdict or in his motion for new trial, and therefore is not preserved for our review. Civil Rule 72.02, V.A.M.R.
After the jury returned verdicts for plaintiffs under instructions of rеs ipsa lo-quitur, defendant moved, and the court ordered, the grant of a new trial because plaintiffs had failed to define “negligence” as used in their verdict-directors, Instructions 3 and 4 and, also, because they failed to instruct on measure of damages by MAI 4.01.
Instructions 3 and 4, identical except as to the plaintiff(s) on whose behalf given and the wording of proposition Fourth, submitted: 3
“Your verdict must be for the plaintiff (s) Thomas Michael Cunningham(Woodrow Cunnningham and Charlotte Cunningham) if you believe:
“First, the defendant by his agent and employee had the exclusive management and control of the 1959 Ford automobile аnd wrecker mentioned in the evidence, and
“Second, the 1959 Ford automobile fell upon the plaintiff Thomas Michael Cunningham, and
“Third, such falling of the 1959 Ford automobile was the direct result of Defendant’s negligence, and
“Fourth, as a direct result of such negligence, plaintiff (plaintiff’s child) Thomas Michael Cunningham (was injured and plaintiffs thereby) sustained damage.
“Unless you believe plaintiff(s) is (are) not entitled to recover by reason of Instruction No. 6.” 4
Defendant Hayes (who, as to this aspect of the court’s judgment, is respondent) asks us to sustain the trial court because the meaning of “negligence” is not commonly understood when used as a term connoting legal fault, and therefore must be defined. In recognition of this (he continues in argument), Chapter 11.00 of MAI defines “negligence” in its full range of possible applications and having done so, implicitly requires that when that term is used in a verdict directing instruction, it must be appropriately defined. In support, he cites Helfrick v. Taylor, Mo.,
In Helfrick, a case involving the exercise of ordinary care, the court approved the use of MAI 11.02 and 11.05 to define “negligence” as that term appeared in defendant’s contributory negligence instruction. Having ruled the merits, thе court went on to declare, 440 S.W.2d l. c. 945 [5]: “As a matter of fact, Instruction No. 3 (the definition) was necessary to tell the jury what the term ‘negligence’ as used in Instruction No. 8 (the contributory negligence verdict-director) meant. Its use was mandatory.” The court then made reference to MAI 11.02 and also the illustrations on use of instructions in MAI 31.01, 31.02, 31.03 and 31.04 (now MAI 35.01 and following), all of which include an instruction defining “negligence”. (We here note that none of the illustrations, MAI 31.01 et seq. or MAI 35.01 et seq. involves a res ipsa loquitur submission.) This holding, however, was referred to as “dictum” by the Supreme Court en banc in Brewer v. Swift and Company,
Whether MAI requires “negligence” be defined in every instance of its use, therefore, has yet to be authoritatively settled.
Plaintiffs’ (here, appellants) essentiаl argument is that because of the nature of the res ipsa loquitur doctrine itself, no definition of “negligence” is required when it is submitted. We do not agree. Res ipsa loquitur facilitates, but does not dispense with, proof of negligence. Frazier v. Ford Motor Co.,
The inference raised by the doctrine is that there was a want of ordinary care.
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In submitting plaintiffs’ cause of action under the doctrine, therefore, the trial court had not only inferred some negligence from the circumstances as a matter of law, but also that, more probably than not, it was defendant who had failed to exercise (in this case) ordinary care. Since a factor bearing on the quantum of proof necessary to establish the probability of defendant’s negligence undеr the doctrine is the duty owed plaintiff by defendant (Shafer v. Southwestern Bell Tel. Co.,
But although the court is bound by the inference of negligence it has drawn from the circumstances, the jury is not. “ ‘(I)t is evidence to be weighed, not necessarily to be accepted as sufficient.’ ” (Harke v. Haase, 75 S.W.2d l. c. 1004 [7]; Turner v. M. K. T. R. Co.,
To submit MAI res ipsa loquitur negligence, a finding of probability, without defining the equivalent standard of care, an ingredient of that probability, is substan
The trial court’s order granting defendant a new trial must be sustained. We need not determine whether it was also errоr for plaintiffs to have failed to submit their damages by MAI 4.01 or any other formal instruction. Admittedly, this lapse was an inadvertence, and, in any event, is not likely to recur.
The judgment is affirmed and the cause remanded.
All concur.
Notes
. We are not called upon to answer this aspect of defendant’s argument because we have concluded that plaintiffs pleaded, tended to prove and submitted a cause of action for defendant’s active negligence. It should be noted, however, that defendant’s argument is not otherwise sound. Wells v. Goforth, Mo.,
. Byrne v. Boadle, 1863, 2 H & C 722, 159 Eng.Rep. 299.
. These instructions, modifications of MAI 31.02(1) — Verdict Directing — Res Ipsa Loquitur, comply with the “all muscle and no fat” and other standards required of modifications by Civil Rule 70.01(e); Epps v. Ragsdale, 429 S.W.2d l. c. 801 [8, 9],
. Instruction No. 6 is an amalgam o£ propositions couched in the language of assumption of the risk but submitting plaintiff’s contributory negligence. The legal sufficiency, propriety or necessity of that instruction under MAI are not in issue.
. Prosser, Law of Torts, 3rd Ed., p. 230; 65A C.J.S. Negligence § 220.9a; Anno., 23 A.L.R.3cl, Sec. 2, p. 1086, Harper & James, Law of Torts, See. 19.6.