Sanders v. Williams

Hammond, J., delivered the opinion of the Court. The operators of a gasoline service station were held liable by a jury because one of them, while adjusting the carburetor of a Buick automobile, suddenly applied the gas and caused the car to lurch forward and strike the appellee. The sole reliance in this appeal is that the trial court erred in instructing the jury that the appellee ¹⁵¹ was free from contributory negligence as a matter of law. The appellee, a regular patron of the service station, had previously spoken to one of the operators about part time work there.

On the night of the accident, he drove in to get gas and stopped his car facing the Buick, which was standing at the other end of the pump islands. After his car had been serviced and he had paid for the gas, he walked in front of his car and stood between it and the Buick waiting for an opportunity to talk to Saunders, who was working on the Buick. Its hood was up, the motor was idling, and no one was in the car. Saunders was adjusting the carburetor so that the motor would not idle too fast as it had been doing.

Appellee stood there for a minute or two waiting to tell Saunders that he could not take the part time job at the filling station that he had been considering. Saunders and the owner of the Buick say that appellee put his foot on its bumper and watched the adjustment of the idling screw of the carburetor. Saunders says: “When adjusting a carburetor on a car that is idling fast, you have to touch the gas a little” and that, as he did so, the car lurched forward and caught the appellee between its bumper and that of his own car. He was asked whether, before he applied tfie gas, he told appellee to get out of the way and said that he did not, and also, that he did not know when he applied the gas whether the driving mechanism was set so that the car would move.

He said that the hand brake was partially applied. It may be gleaned from the testimony of Saunders, although it is not entirely specific, that in a fluid drive car, such as the Buick, if the lever on the dash is at “drive”, forward motion will be restrained by the hand brake as long as the car is idling, but that if sufficient gas is forced into the carburetor, it will move forward in spite of the restraint of the brake, and that this apparently is what happened. The appellants concede that there was ample evidence of the negligence of Saunders, and that the appellee, although he had completed his purchase of gasoline, continued to be owed the duty of ordinary care. In the ¹⁵² charge the trial court said “the Court tells you as a matter of law that the plaintiff had a right to be there * * * that he himself, that is, the plaintiff himself, was not guilty of negligence contributing to the happening of this accident or injury.” The appellants fully and specifically excepted to this phase of the charge, urging below, as they do here, that the plaintiff, by lack of care for his own safety, put himself in a position of danger and so contributed to his injury and that the jury should have been allowed to consider whether his conduct was negligent.

As is true of primary negligence, one measure of contributory negligence is the need, in a given situation, to anticipate danger. Presence or absence of reasonable