Cohen v. Stevenson

Bruñe, C. J., delivered the opinion of the Court. The plaintiff below, appellant here, Cohen sued the defendant-appellee, Stevenson, to recover for personal injuries alleged to have been sustained through negligence on the part of the defendant. The case was submitted to the jury on questions of primary negligence and of contributory negligence. The jury failed to reach a verdict and was discharged.

The defendant filed a motion for a judgment N.O.V. The trial judge delivered a brief oral opinion in which he found that evidence of primary negligence was lacking and also that the plaintiff’s action in moving into the position where he was injured constituted contributory negligence. He accordingly granted the defendant’s motion and the plaintiff appealed from the judgment entered in accordance therewith. Cohen was employed as a salesman for a home improvement company, of which a Mr. Pearlman was the owner or manager. On the day of the accident here involved Cohen was driving a light truck to pick up some material for use on a job and his employer, Pearlman, was driving a passenger ²⁰⁴ car accompanying him on the errand.

At a point near the defendant’s service station the tire on the right rear wheel of the plaintiff’s truck blew out. Cohen parked the truck on the side of the road with about the left half of the vehicle on or over the macadam pavement and the right half (including the blown out tire) on or over the somewhat soft, sandy shoulder of the road. Pearlman went to Stevenson’s service station for assistance, and Stevenson sent out a youthful employee named Keifer, then aged about sixteen and a half years, to change the tire. On this mission Keifer drove the defendant’s truck which was equipped with a crane hoist and also with jacks.

Keifer elected to use the jacks for this job. He first jacked up the right rear axle with a hydraulic jack placed on the shoulder of the road. Since this did not raise the wheel high enough to permit the removal of the flat tire, he scooped out some dirt under it and then took it off. Next he tried to get the spare tire and wheel out from their position under the rear of the body of the truck, but the truck was too low for him to do so.

He thereupon took another jack (apparently a bumper jack) from the repair truck and jacked up the Cohen truck by placing the second jack under either the rear axle or the rear bumper somewhat to the left of the center of the truck. Cohen took no part in the tire changing work. At the start of it he was sitting on a rather low embankment at the side of the shoulder of the road about seven to ten feet from the edge of the macadam. He was to some extent watching Keifer and was talking with a fellow employee.

Pearlman’s car was parked in front of the Cohen truck and Pearlman was sitting in it going over some papers. He called to Cohen to join him. Cohen left the embankment and started towards Pearlman’s car, walking along the shoulder of the road about three or four feet from the side of the truck. This shoulder sloped down to the foot of the embankment somewhere between one and two feet vertically in a horizontal distance of seven to ten feet.

As Keifer was preparing to go under the truck a second time to get the spare tire and wheel and as Cohen was passing ²⁰⁵ alongside the truck to join Pearlman, the truck slipped off both jacks and struck Cohen, injuring his shoulder. There was a conflict of testimony as to whether or not Keifer had warned Cohen to keep out of the way. On reviewing a