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 Yalley on a fishing trip. They were traveling in two ears, 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 fiat tire and he drove the car into the defendant’s garage at Laramiе 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 оwner 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 tirе 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 defend *345 ant bad put any witnesses upon tbe stand, tbe court, upon motion directed a verdict in favor of tbe defendant, upon tbe grounds, first: ‘ ‘ That tbe defendant owed no duty to tbe plaintiff, except tbe duty not to wantonly or willfully inflict an injury upon bim, inasmuch as be was at best a mere licensee and did not stand in any contraetural relation;” second, “that tbe plaintiff himself was guilty of contributory negligence, in that be knowingly subjected himself to tbe risk and danger from which tbe accident resulted.” From tbe judgment entered upon tbe directed verdict, the plaintiff has appealed. Tbe parties will be named herein as in tbe court below. Tbe only points argued herein are whether tbe court was right in directing a verdict upon tbe grounds above mentioned, and we shall accordingly discuss these points in tbe order in which they have been stated above.
Counsel for tbe defendant argue that plaintiff bad no contraetural relations with tbe defendant, and that tbe latter, accordingly, was not liable to tbe plaintiff for putting on the lock-rim aforesaid in a careless manner. They rely upon such cases as Winterbottom v. Wright, 10 M.
&
W. 109; Earl v. Lubbock, L. R. 1905, 1
K.
B. 253; Marvin Safe Company v. Ward, 46 N. J. L. 19; Le Lievre v. Gould, L. R. 1893, 1 Q. B. 491; National Savings Bank v. Ward,
In 19 English Ruling Cases, page 60, the rule relating to the duty resting upon the owner or occupier of premises who invites another to come thereon, is stated as follows:
*347 “A person wbo invites another to come on his premises upon a business in which both are concerned, is bound to take care that his premises, and all appliances provided by the owner as incident to the use of his premises, are-safe for that other person to come upon and use them as required, or else to give due warning of any danger to be avoided. But where the stranger comes as a guest or as a bare licensee, the owner of the premises is only bound to warn him of anything in the nature of a trap upon the premises.”
One of the leading cases on the duty toward an invitee is Indermaur v. Dames, 1 Court of Common Plеas, L. R. 274, 287, where it is said, among other things:
“And with respect to such visitor at least, we consider it settled law that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage-from unusual danger, which he knows or ought to know; and that where there is evidence of neglect, the question whether such reasonable care has been taken, by notice,, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact.”
In section 968, Thompson’s Commentary on the Law of Negligence, it is said:
“On the contrary, the owner or occupier of real property, is under the duty of exercising reasonable or ordinary care and prudence to the end of keeping his premises safe for the benefit of those who come upon them by his invitation, express or implied, and if, through a neglect of this duty, they are, without negligence or fault of their own, injured by reason of any negligent defect therein, he must pay damages. # * * He must not expose them to hidden dangers of which they are not aware, but of which he is or may be, by the exercise of reasonable care, aware, especially if the danger is in the nature of a trap.”
*348
The rule has been applied to keepers of a garage in Graham v. Ochsner,
Defendant contends that plaintiff in this case was not an invitee, but was, at best, a mere licensee, who was required to take the premises as he found them, and to whom the only duty that was owing was not to inflict any wanton or willful injury, as stated in 20 R. C. L. 59. We cannot agree with this contention. The testimony shows that the plaintiff helped to take off the tire from the wheel and no objection was offered to his presence in the garage at that time or later; that he was further left in the garage by the owner of the car as his agent, for the purpose of paying the repair bill and to take the car out of the garage to a place agreed upon. The plaintiff was the representative- of Mr. Baker. In section 978, Thompson’s Commentary on Negligence, it is said:
‘ ‘ The owner or occuрier of premises manifestly owes to the employes of his customer, coming upon his premises to do business for their employer, the same duty that he would owe to their employer himself.”
See also section 979. In Indermaur v. Dames, supra, it was said that there is no sound distinction between the
*349
case of a servant and the ease of his employer. In the case of Watters-Pierce Oil Co. v. Snell,
“Appellee was the servant of a customer of appellant, was lawfully on its premises for the purpose of procuring the products it sold, and it owed him the legal duty to exercise at least ordinary care to protect him from injury while there.”
The same principle is recognized in New York Lubricating Oil Co. v. Pusey, (C. C. A.)
The liability of the keeper of premises, and the right of protection of an invitee, may, of course, be a limited one, and cannot go beyond the invitation. There are numerous cases to that effect, many of them holding that an invitee goes beyond the scope of and violates the invitation when he goes into some рart of the premises where he is not invited and where the purposes of his visit do not warrant him to go. See for example, Gavin v. O’Con-
*350
nor, 99 N. J. Law 162, 1 N. J. Misc. Rep. 66,
Can these principles of law, which seem to be sound, be applied in the case at bar? ¥e think they can, although we find no precedent in the books one way or the other so far as the particular facts are concerned. There is no testimony in the recоrd that the invitation was limited except by the character and the purpose of the business in which defendant was engaged and for which Mr. Biaker and the plaintiff were in the garage. It can hardly be said that the plaintiff had merely the right to be in the business office of defendant, as contended by counsel for defendant. He and those who were with him were permitted to be at the place where the automobile stood, when the tire was taken off, and no objection was made to the later presence of plaintiff in the garage, and we know from common experience that men having their automobile fixed in a garage commonly, or at least frequently, drive it out themselves instead of having the garage-man or his employees do so for them. The purpose and scope of the invitation to plaintiff, as *351 Baker’s agent, was to get tbe automobile when the tire, was fixed. That, in the absence оf evidence to the contrary, or at least from the testimony in the record before us, would, we think, include the right of plaintiff to go into the garage and to the place where the automobile stood-for the purpose of getting it, and he, accordingly, had the right, if he himself was in the exercise of reasonable care, to be protected from any dangerous condition at that place, created or permitted by defendant, whether that dangerous condition arose from Baker’s or somebody else’s automobile or from any other appliance on, or condition in, the floor of the garage. The examination of the tire on Baker’s car by the plaintiff would seem to be merely incidental to getting the car, not at all an unusual thing to do, but in accordance with the ordinary practice of men, and a matter that might well be anticipated by the defendant, and which should not, aсcordingly, at least in the absence of evidence showing a contrary practice, be held, as a matter of law, to be beyond the scope of the invitation and outside of the purpose thereof. ¥e think, accordingly, that the court, in view of the testimony in the case, erred in directing a verdict for defendant upon the ground here considered.
We come then to consider the question whether or not the plaintiff was guilty of contributory negligence as a matter of law, so as to justify the court in directing a verdict on that ground. Counsel for defendant have summarized the testimony, which is claimed to have justified the court in this action, about as follows:
“It appeared that plaintiff was accustomed to driving a car extensively and each day, at a distance of about fifteen to twenty thousand miles a year. He had operated several different kinds of cars for ten or twelve years, including the car in question, and knew practically all the different types of cars. He often had occasion to change tires and he demonstrated in court the right and wrong way of changing the tire in question; he noticed and *352 called tbe attention of Leake to tbe fact that tbe canvass flap was not inside tbe rim (casing) and bad bim change it; be noticed that the ends of the rim were about two inches apart, whereas they should have come together, and he called attention to that, knowing from his experience with former cars that the ends should meet; he noticed that the lock was standing up at the top, was wrong-side out and nothing was holding it at all; that there was a crack of one-fourth of an inch or more between the lock and the rim, and he remarked that it wasn’t fixed right. Mr. Barton, who was standing behind Loney, saw the same conditions and defects observed by the plaintiff. The latter’s eyesight was perfect and he knew that Leake was unfamiliar with that type of fastening and did not know how to change the tire and plaintiff assisted Leake in taking the tire off. Yet with all this knowledge, he put his face down within ten inches of the wheel and thus exposed himself to the injury when the tire and lock-rim blew off.”
To this statement, nearly correct, must be added the testimony that when the plaintiff called Leake’s attention to the condition of the rim, and asked him whether or not the ends of the rim should meet, Leake answered:
“I
guess I know what I am doing;” and that plaintiff then did not say anything because he thought that Leake did. It was shown conclusively that the plaintiff knew of the defective condition of the tire and of the lock-rim, but that, in and of itself, is not, we think, in this case, sufficient to make him guilty of contributory negligence as a matter of law. Plaintiff, it is true, was bound by what he knew or might have known by the exercise of ordinary care. Cerrano v. Ry. L. & P. Co.,
“The principle is too well settled to require a citation of authorities to support it, that mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk.”
In 20 R. C. L. 110, it is said:
“From proof that the plaintiff had knowledge as of a physical fact, of the place or appliance by means of which he sustained the injury complained of, it does not necessarily follow that he must have appreciated the danger to which he was exposed therefrom, and it is an appreciation of or opportunity to appreciate the peril that bars him of recovery. Mere knowledge of the offending instrumentality does not constitute contributory negligence.”
These principles were applied in the case of Town of Cody v. Soth, (Wyo.)
“When this defense (of contributory negligence) is urged as a ground for a nonsuit or for a verdict for the defendant, as it is in this case, it must appear that reasonable men, acting as the triers of the fact, would find, without any reasonable probability of differing in their views, either thаt the plaintiff knew and appreciated the danger *355 or that ordinarily prudent men under tbe same circumstances would readily acquire such knowledge and appreciation. 5 ’
And in the case of Central R. Co. v. De Busley, (C. C. A.)
“"We are, of course, to be guided by the well settled rule that where there is uncertainty as to the existence or nonexistence of negligence or contributory negligence, or both, whether such.uncertainty arises from a conflict in the evidence or because, the facts being undisputed, fair minded and reasonable men might honestly draw different conclusions therefrom, the questions are primarily for the jury, and that it is permissible for a court to give binding instructions only when the facts are such that all reasonable men must draw the same conclusions from them.”
See also Saylor v. Electric Co.,
“Even though the facts are undisputed, still, if more than one inference can be drawn therefrom, the question of negligence is for the jury. ’ ’
While the trial judge must necessarily determine in the first instance whether or not a case comes within the principle above mentioned, and while it may at times be a close point whether it does or not, we do not think that it can be said in this case that all fair-minded men could only draw the inference in this case that th.e plaintiff was negligent. The very fact of the unusual character of the *356 accident, ¿¡ready referred to, would seem to preclude this conclusion. We know, neither from the evidence iñ the case, nor from common knowledge, that when the plaintiff observed that the rim was not properly fastened on the tire that he should have known and appreciаted the danger to which he was exposing himself when he stooped down to look at the tire, or that such danger was so open and obvious that the average prudent man would have realized the risk. In fact, it would seem from the evidence, that plaintiff stooped down to examine and determine more closely just what was the matter with the tire and the rim. We think that the question of contributory negligence was for the jury, and that the court erred in taking it from them.
It follows that the judgment herein must be reversed, and the ease remanded to the District Court for a new trial.
Reversed and Remanded.