i i /) record no. 1723

1

I I /) ,i(_.

1723 Record No. 1 In the

Supreme Court of Appeals of Virginia at Richmond

C. D. KENNY COMPANY, A CORPORATION,

v.

WILLIAM JAMES DENNIS.

~'P.01I LA\\ AXD .EQUrTY COURT, PART TWO, OF CITY OF RICllniON"D

" The briefs shall be printed in type not less in size than small pica, and shall be nine inches in length and six inches in width, so as to conform in dimensions to the printed records along ·with which they are to be bound, in accordance with Act of Assembly, approved March 1, 1903; and the clerks of this court arc directed not to receive or file a brief not confor.ning in all respects to the aforementioned reCJnirements."

The foregoing is printed in small pica type for the information of counsel.

1\f. l3 \VATTS, Clerk.

J07 V0- 41'1

IN 'l'HE

Supreme Court of Appeals of Virginia AT RICflM.OND.

Record No. 1723

C. D. KENNY COMPANY, A CORPORATION, Plaintiff in Error,

verstts

WILLIAM JAMES DENNIS, Defendant in Error.

PETITION FOR WRIT OF ERROR.

.. 'f .). r

To the Honorable Justices of the Supreme Oou,rt of A.ppe(il~ of Virginia: . ..

Your petitioner, C. D. J{enny Company, a Corporation, respectfully represents that it is aggrieved py a final judgment in the sum of Twenty-two Hundred Fifty ($2,250.0()) Dollars, of the Law and Equity Court of the City of Richmond, Part II; rendered. on .the 14th day of April, 1935, itl favor of the plaintiff in the above entitled case, wherein your petitioner was the defendant. . The parties will be hereinafter referred to as the plaintiff and. defendant, according to their I~espective positions in the trial court. UnlesE? other.: wise indicated, all italics are ours, and the page numbers refer to the transcript of the record. Counsel for the petitioner desire to state orally to the Court the reasons fqr re:viewing the decision complained of, and adopt this petition as the original brief, a copy of which wa~ presented to Harqld H. Dervishian, Esq., a·nd Josep~ S~arove, Esq., co:unsel iQr the plaintiff on· the 20th day of September, 1935. .

-.~.-~

2 Supreme Uourt of Appeals of Virginia.

RULE O:b, DECISION.

In view of the fact that the plaintiff secured a verdict in his favor, it is conceded by the defendant that, for the purposes of this petition, the plaintiff is entitled to a statement of the facts as they appear most favorably to him. In Price v. Burton, 155 Va. 229, 154 S. E. 499, at 500, this Court said:

"It must be borne in mind that, unless tl1e verdict of the jury is plainly wrong· or without evidence to support it, this Court will sustain it. Under this rule in view of the verdict of the jury we will consider all material conflicts in the testimony as settled by the verdict in favor of the plaintiff.''

FACTS.

Briefly, in narrative form, the facts are as follows:

The plaintiff, William James Dennis, was an employee of the Old Market Garage, 5 North 18th Street, in the City of Richmond (Tr., p. 63). The .defendant, C. D. J{enny Conlpany, is a corporation, n1aintaining a store at 1701 East Broad Street (Tr., p. 72). For the purpose of delivering merchandise, this store has several trucks (Tr., p. 22). Tl1c defendant does not maintain any expert mechanics (Tr., p. 77), but has its repair work done by various garages in the City, including the Old Market Garage (Tr., p. 59).

On May 3, 1933, a Hre on a truck used by the C. D. Kenny Company became flat, and .James Lewis fixed the tire (Tr., p. 22). After having fixed it, he rolled it around to the Old Market Garage, a block and a quarter away, to have it inflated (Tr., p. 26). He started putting- air in the tire and called to James Dennis to bring him a gauge (Tr., pp. 26-27). This Dennis did, and, after stooping down so that his face was near the rim, applied the air tube to the valve (Tr., p. 63). He was on the side of the tire where· the lock rim was not fastened to the main rim (Tr., p. 72; Tr., p. 35). About a second after he applied the air hose, there was an explosion of the inner tube (Tr., pp. 57, 73), the lock rim flying off and etrikin~ him in the mouth, inflicting the injuries for which he sues (Tr., p. 64).

The tire is mounted on a large circular rim .. On both sides of this rim on the outside is a side rim which fits against

C. D. Kenny Co. v. William James Dennis. 3

the sides of the tire when the -latter is in place. One of these side rims is permanently fastened to the main rim by a flange. On the other side of the main rim is the other side rim, · which is held in place not by a flange, but by a circular spring steel piece known as the lock rim. This is the side upon which the tire is always mounted or placed upon the main ·rim. According to the plaintiff's expert, Rappley, it is impossible for the rim on the flange side to come off (Tr.,

.p. 35). In mounting the tire it is placed on the main rim with the side r~ fastened to the flange attached to the main rim, then the other side rim is placed on the main rim, and, the lock rim placed in the groove ·between the main rim and the groove in the side rim, thus nolding the side rim in place. Because of the difficulty of description, we shall be glad if this Court desires, upon consideration of this petition, to bring a similar rim into Court in ·order to give a better picture of the piece of equipment involved. If a writ of error is awarded, we shall, in all ev~nts, have such equipment in the Court for physical demonstration when the case is heard upon the merits. The actual original rim is not available, because it was placed in use after the accident, and no one knows which one it is (Tr., p. 67).

As the assig·nments of error will call for a full review of the evidenc.e, the minutn details of tl1e occurrence will be delayed until then.

ASSIGNl\IENTS OF ERROR.

AssiGNMENT oF ERROR No. 1.

The Court er·red in. overrulin_q the defendant's motion to set aside the verdict of the j-ury and enter judgment in its fa.vor on the _qroun.rl tha.t it ·was without evidence to support it (Tr., p. 10).

The defendant moved the· Court for final judgment because Hw verdict "ras:

'' (2) Without evidence to support it, and "(3) There was no evidence of primary negligence of the

defendant.'' (Tr., p. 10.)

The reasons are so closelv related that both will be discn.ssed under the assignment indicated. We shall discuss the assignment from the angles of:

~-

4 Supreme Court of Appeals of Virginia.

A.

No duty was owed U'hich 1vas not d-ischarged.

B.

The case presents one of ass·umpt-ion of risk and application of the simple tool doct1·ine.

c. There were many cattses ,qh•en which 1night have resuUed

in the injuries sustained, none of which involved negli,qence on the defendant'.c; part. Eve'n. though it be conceded (~vhich is denied) that negligence could be inferred from sonte of the causes, there are othe1·s of equal probability from which no such inference shmtld be drawn.

Taking these up in the order named, we will discus,s first:

A.

No duty was owed which 1va.<; not discharged.

The plaintiff was employed by the Old Market Garage as general "handy man", his duties consisting of doing general work at the garage, such as inflating tires. and working on the cars brought in (Tr., p. 58). The Old Market Garage, for the benefit of its customers, has an air pump · ( Tr., p. 59). Sometimes the customers put air in their own tires, and sometimes the employees of the garage do this {Tr., p. 59). The method used in putting air in the tires is to apply a ·valve on the end of a hose from the compressed air tank to a valve in the tire (Tr., p. 74), the connection inflating the tire. There are g·auges used to tell how many pounds of air are in -the tire, and these a.re used by applying to the valve on the tire (Tr., p. 74).

The plaintiff had been employed at the Old Market G:arage for about sixteen or eighteen months when this accident occurred, and his duties required him to assist customers when.ever they so desired it (Tr., p. 68). ,James Lewis had beeu employed by the C. D. T<enny Company for about six months, and his duties 'vere to act as an extra chauffeur and to be a po·rter (Tr., p. 21). He was not employed, nor 'vere any of the C. D. J{enny Company employees considered, as a mechanic (Tr., p. 77). He did at timeR change tires, but usually

C. D. Kenny Co. v. vVilliam James Dennis. 5

with the help of others ( Tr ., p. 21). This particular time, he had changed the tire by himself ( Tr ., p. 22).

In lllarneri v. S. A. L. By. Co., 147 Va. 415, 423; 137 S. E. 496, Chief Justice Campbell (then Justice), in quoting from Shearman & Redfield on the Law of Negligence, Section 10, page 17, stated: "As a matter of course, there can be no negligence where there is not broach of duty", and again in the opinion, "Negligence presupposes a legal duty".

The Old 1\{arket Garage had dono considerable work for, the defendant, and the defendant was described as being a regular customer by one employee (Tr., p. 59). When, after the injury occurred, the defendant wanted his tire fixed, he sent it to another repair shop, which fixed the tire in the regular course of business, and, even after the accident, had no trouble 'vith it (Tr., p. 80). The plaintiff, then, being almost an expert in this line of work, ln1e'v much more about the dangers of tires than the defendant, who had no reason to know. The plaintiff was familiar with this type of tire and rim (Tr., p. 64); and hence was in a position to know whatever was wrong with that particular tire and to know what injury was likely to occur, while the defendant, not employing any experts along that line, had no means of knowing whether or not there w.as anything dangerouf:? about the tire and rin1.

In the case of Leroy V. Sch1W1·holz v. L. G. Roach, tt·ading and doing business under and in the nanw of Coca-Cola Bottling Works, the Record of which is No. 3249 of the· United States Circuit Court of Appeals and is filed with this petition, the following· is an excerpt from the charge, objected to by neither side, given by the District Court upon the question of the duty of inspection owed by a bottler of a product ( p. 88 of that Record) :

"He is not expected to see through something that an ordinary man can't see through and therefore he couldn't, in my opinion, be required to inspect in such a "ray as to deter·mine whether the thickness of the skin of the bottle or the walls of the bottle 'vas· two thirty-seconds or three thirtyseconds of an inch thick, an almost infinitesimal difference, not ascertainable in the ordinary course by the ordinary inspection which ordinary men would be expected to make under the circumstances.''

This seems to us to be sound law, and we believe that applying this rule to the case at bar, the defendant is not neglig·ent, and it is not its duty to ascertain that which even an expert cannot know, and it is only in negligently failin~ to

6 Supreme Court of Appeals of Virgiuiu.

disclose this defect that the defendant could be held liable for such.

James Lewis did not claim to be an expert (Tr., p. 21). He 'vas put on the stand ·by the plaintiff, who did not question him as to the best means of tire inflation. The plaintiff knew Lewis and had seen him come around to get service from the station and had helped him inflate the tire (Tr., p. 65). Mr. Martin, the defendant's manager, made no pretense of kno,viug anything about this type of work. That he did not think of his employees as being experts is shown by the fact that he sent his mechanical 'vork to garages (Tr., p. 77). The plaintiff knew these facts, and yet here claims that the defendant violated a duty in fniling to tell him of latent defects, a duty which the defendant did not owe, because he had no knowledge himself. Indeed, when the tire was fixed, it looked "all right" (Tr., p. 64}, and there is no evidence that the defendant did not suppose it to be in good condition. It is obvious that if hvo people are handling a piece· , of machinery, one an expert and the other not, the expert. knows more of possible defects than the non-expert, and if the machinery looks all right to the non-expert, then he would

·not be expected to tell an expert something of which the expert has greater knowledge than. he.

The case of Overstreet v. Semtnty, etc., 148 Va. ~06, 138 S. E. 552, involves similar principles to those of the case at bar. 1\fansbach Brothers emploved the defendant to move certain goods into their new building. There was an elevator in this building that had been used for some time prior to the accident by the workmen of the defendant. This elevator was so constructed that it would neither ascend nor descend if the doors were open. However, by putting a plug in tl1e doors, the electrical contact could be made, just as if the doors were shut. The plaintiff, an electrician, came in to fix some lights on the top of the elevator, and, after having done this, got inside to descend. The helper driving the elevator turnecl the control, but the elevator did not move, and the plaintiff started to reach for the door, when the elevator dropped some eight or ten feet, thereby inflicting injuries on the plaintiff. A verdict for the plaintiff "ras set aside by the trial court, and the Supreme Court held this to be proper. The contention of the plaintiff was that the negligent phurginp: of the doors by the workmen in the building had caused the elevator to drop, and that he should have been notified of this. The Court, however, held that he wa!? better fitted to know of the possible dangers in using the el~vator by plugging the doors than the workmen and that the defendant owed the plaintiff no duty to warn him.


In Varas v. James Ste~vart Co., 17 S. E. (Mo., 1929) (2d) 653, the plaintiff was an expert mechanician. The defendant was engaged in the construction business and in its work owned and operated a Ford truck. The brakes needed repairing, and the defendant took the truck to the plaintiff's place of business. After the plaintiff had repaired the brakes he attempted to test the brakes, and, in cranking the car, was injured when the crank ''kicked'' him. After the injury, it was discovered that there was a short circuit in a part of the car removed from the brakes. The Court held that ther~ could be no recovery and said ( p. 653) :

''It will be observed that there is an utter failure to show any knowledge on the part of the defendant Stewart & Co. of the defective condition of the commutator wire, and this the plaintiff seems to concede. Plaintiff contends, however, . that it was the duty of defendant Stewart & Co. to know of this condition if it could have been discovered by reasonable care and diligence ; in other words, plaintiff contends that Stewart & Co. owed the plaintiff the duty of inspection to discover the defect. To support this contention plaintiff cites numerous authorities, which, we think, are inapplicable to the case made here. The law of this case is declar~d by the Kansas City Court of Appeals in King v. National Oil Co., 81 1\io. App. 155, as follows:

'' 'The plaintiff's evidence tends to prove that at the time the defendant sent its wagons to the firm to be repaired, the tanks thereon contained considerable quantities of vaporized g-asoline, 'vhich, if brought in contact with hot metal or fire, would explode. If the defendant knew of the dangerous condition of the tanks at the time it sent the same to the :firm for repairs, then there arose a duty on the. part of the defendant to notify the plaintiff of the same so -that he might take the proper precautions against the danger of injury incident to making the required repairs the-r:eon. * • • If the defendant sent the wagon to the shop of the firm for repairs, when it knew that the tanks thereon were charged with vaporized gasoline, then it must. have reasonably anticipated the danger of an explosion if, in making such repajrs, hot

· rivets should be used; and especially so since there is some evidence .tending to show that the defendant's superintendent suggested to the firm that in making the repairs that it use hot rivets. * * * But the evidence of the plaintiff does not tend to sho'v directly or inferentially that the defendant, at the time it sent the tanks to the firm, knew the same contained vaporized gasoline in a quantity sufficient to make it unsafe

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or dangerous to repair the same with hot rivets. Evidence of this fact was wholly wanting, and for this reason the de-. fendant 's demurrer should have been sustained by the trial court.' ''

B.

The case presents one of assutnpt·ion of risk and application of the si1nple tool doctrine.

Our Supreme Court of Appeals has said:

"While assumption of risk is often a m.atter of impliecl con" tract, as in case of master anr.l se_rvant, it is not always and

necessarily so. The 1ne·re doin.rJ of a-n act in the absence of any contract, may be the assuntpt-ion of ·risk, as is illustrated by

· engaging· in athletic sports and the like. A man 'vho crosses a railroad track in front of an approaching train assumes the risk of getting across in safety. \Ve assume risks in many ways every day, 'vithout any relation to contract." TVeston's Ad1n'x v. St. TTinaent, etc., 131 ·va. 587, 593. 107 S. E. 785.

This is recognized by other courts when recovery was refused, because it was held that the plaintiff had assumed the risk.

See:

Horter v. Dick·mon, 209 Wis. 283, 245 N. W. 157:

''A guest in an auto assumes the danger incident to the skill, competency, and experience of the driver whether known or unknown to the guest.''

Scranton, et als. v. Wedget·, 156 Mass. 462, 31 N. E. 642, 16 L. R. A. 285 (holding that plaintiff being a mere spectator. assumed risk of injury from :fireworks).

Brackett v. L. & M. R. R., 33 Ky. L. R. 921, 111 S. W. 710, 19 L. R. A. (N. S.) 558 (holding that one crossing between two railroad cars assumed the risk of being injured ,~lhen they moved).

Cleary v. Eckart, 191 Wis. 114, 210 N. W. 267, 51 A. L. R. 576.

Wells v. Minneapolis Baseball & .Athletic Asso., 46 L. R .. .A. (N. S.) 606, 122 Minn. 327,142 N. W. 706 (holding that one -assumes risk of being hit at a ball ?:arne if he could have gotten behind the screen in the grandstand).

C. D. Kenny Co. v. vVilliam James· Dennis. 9

Shearman and Redfiel~l on The Law of Neg-ligence, Vol. 1, Sec. 114b, page 290, et seq.:

"It is well settled that, in(lependcntly of the relation of master and servant, thm·e may be a vol,wntary assurnption of the risk of a known da-nger arising from the negligence of another, which will debal}" one from the recovery of c01npensation in case of injtJ,ry to person or 1.1roperty therefron~, even thottgh he is in the exe1·cise of due care. * 'r. * vVhere no con.,. tractual relation exists between the plaintiff and the defend~ ant this assumption of risk rests on the general principle expressed in the maxim 1.JOlenti non fit injt~,ria, which is broad enough to cover all cases where an injury results from a risk knowingly and voluntarily incurred. * * * The doctrine has son1etimes been applied in the case of a trespasser, frequently without express reference being made to it. In like manner it has been more frequently applied to risks voluntarily incurred by passengers and by travelers on highways. * * * ,, 0 j

It may thus be seen that the question whether the plain.l. tiff was an employee of the defendant, or whether there was any n1aster-serva.nt relationship involved· is clearly immaterial.

The tire w·hich caused the injury in the case at bar '\vas a tire such as those in common use by many people. The plaintiff was familiar with this type of tire (Tr., p. 64), and his duties at the garag-e were to inflate or assist customers in the inflation of tires ·when the tires were in need of this service (Tr., p. 58). It is hardly necessary to argue that this type of '\Vork is clone by filling stations and garag-es everywhere and that young- and old, rich and poor alike inflate tires in this manner. Any child with sufficient strength to apply -the hose to the tire valve could have performed this sbnple operation. It is also hardly necessary to argue that the process and potential dangers are recognized. Indeed~ this is the very type of instrument that comes under the classification of ''simple tools". Were this action against the employer, there could he cited abundant authority to the effect that when a ''simple tool'' is used, the employee assumes the risk. As '\Ve ·have heretofore shown, assumption of risk is. not limited to action between employer and employees or n1aster-servant actions. Since that doctrine applies to other relations than that of the master and servant, it is clear that rules in reg·ard to assumption of risk would also apply to other relationships. Therefore, following the "simple tool'' doctrii1e, wherehy one who is injured assumes the risk of in ..

10 Supreme Uourt of .Appeals of Virginia.

jury from those instrunwnts which corne under this classification, it is obvious that the plaintiff here assumed the risk of the injury which he sustained. This Court, in discussing this doctrine in the case of Smtthern R. Co. v. Bwrford, 120 Va. 157, 158, 160, 90 S. E. 616, stated as follows:

''These men were engaged in a very ordinary and simple operation, with simple tools, that required, in the use, no experience or skill. The part taken by the plaintiff in the 'vork was so simple that any child 'vith sufficient strength could have held the rail and turned. it when told. The battered condition of the head of the chisel was ·open and obvious. It was a condition that resulted from its use and was necessarily better known to those who used it than to the master. It is well settled that the employer is under no ·obligation to his servants to inspect, during their use, those common tools and appliances 'vith which every one is conversant; and that it is not the master's duty to repair defects arising in the daily use of such appliances. * * * The just and reasonable rule announced by these two decisions, ·known as the simple tool doctrine, is established by the weight of .American authority.''

To the same effect are :

Chesapeake .cfb Ohio R. Co. Y. Sparrow, 98 Va. 630, 642, 37 S. E. 302.

Meador v. Lake S., etc., Ry. Co., 46 Amer. St. Rep. (Ind.) 384.

Southe1~n R. Co. v. 8now, 117 Va. 627, 630, 85 S. E. 488.

This is not a jury question. That the wheel, tire and all their accessories are simple of construction and arrangenient is an indisputable fact. That the plaintiff knew or had the opportunity of knowing whatever dangers might come fron1 the use of this simple instrument cannot be refuted. This Court has stated the law under such circumstances in Clinchfield Coal Corp. v. Cruise, 117 ·Va. 645, 654, 86 S. E. 135, to be:

'' \Vhether an employee has assumed the risk of dang-ers incident to his employment may be and often is a question for the jury, but not where, as here, the alleged causes of the danger~ are so open and obvious and the knowledge or opportunity for knowledge on the part of the employee so complete as to leave no doubt that he knew or ought to have ~own all about them. In such a case the assumption of the

C. D. l{enny Co. v. William James Dennis. 11

risk as a question of law bars the recovery and is not a question for the jury."

The effect of the holding of the trial Court is that before the defendant (or for that matter any owner. of an automob£le) can turn such a si1nple contrit'ance over to an expert for repair or services, he rnust first consltlt another expert as to the safety of so doing, a conclusion ·which, so far a.s we have been able to tletennine, jro1n careful and exhaustive research, no other court in this country has reached.

c. The1·e were ma;ny causes given which might have resulted

in the jnju,ries S1tStained, none of 'which involved negligence on. the defendant's part. Even tho~tgh it be conceded (which is denied) that ne,qli,qence could be infe1·red from some of the cau,ses, th.ere are others of equ,al tJrobability from wh:ich no such inference should be drawn. ~

It is too well settled to require the citation of authority that the burden of proving negligence is on the plaintiff. All that the plaintiff's evidence has established is that Dennis was injured by an automobile tire owned by the C. D. Kenny Company, when he was attempting to inflate the tire. The plaintiff knows nothing about the injury himself, except that it occurred, and none of the eye witnesses 'vere able to explain the cause. The plaintiff was thereupon forced to introduce expert evidence in an effort to show the reasons for the injury. This expert evidence gives the following reasons: Improperly assembled or tlamaged parts (Tr., p. 37), defective material or defective rim base (Tr., p. 40), rust in the channel, defective channel, such as being pounded out of shape, or defective lock rim (Tr., p. 41),- defective channel, defective side rim, defective lock rim (Tr., p. 44). Analyzing these, it may be seen that the possible causes are:

( 1) Improper assemblage. (2) Defective materials. (3) Rust in the channel. ( 4) Rusted lock rim. ( 5) An injured lock rim. (6) An injured channel.

If the material was defective and was in such a condition from the time it was bought, the defendant is . clearly not liable for any injury caused thereby. -

12 Sapreme Court of Appeals of Virginia.

In Belcher v. Goff Brothers, 145 Va. 448, 134 S. E. 588, it was held that where there is a latent defect in manufactured material, the manufacturer is the sole person responsible for any injury occurring as a result of that latent defect, unless someone else has knowledge of that latent defect. There is no allegation nor any evidence that the defendant had any knowledge of defective materials which might have existed at the time of the purchase of the rim. So, clearly, if this be a cause of the injury, there can be no liability on the defendant.

The rust in the channel and rust on the lock rim stand on the same footing. In order for there to be liability on the part of the defendant, in allowing the rust to remain on these two pieces, it is necessary that there be such an amount of rust that there would be danger ·of an injury, that the defendant have knowledge of this fact and that the plaintiff have no knowledge or means of knowledge thereof. If there is not sufficient rust to cause an injury, it is obvious that allowing rust to ~remain is not negligence. The plaintiff's own expert witness admits that there would have to be a certain amount of rust to make the parts defective. vVhen asked exactly what he meant by this certain amount, he was unable to reply definitely. In other 'vords, he admits that there may be rust on the channel and still be no danger of injury. Unless there is danger of injury, there can be no negligence, and so there could be rust in the channel and not be negligence. This expert witness admits that he is unable to state how much rust would cause an injury. If he himself examined the rim he could not kno'v 'vhether there would be danger of injury from the an1ount of rust on the rim. If an ~xpert would not know this, obviously a layman could not ascertain this fact.

We have already discussed the case of Schue1·holz v. Roach, etc., supra, in which the Court held that one is not required to disclose an infinitesimal difference not ascertainable in the ordinary inspection which ordinary men would make under the circumstances. This would seem to eliminate causes three and four as being causes for which the defendant 'vould be liable.

As to causes one, five and six, the defendant is 'villing to admit, with the quaJi:ficat.ion heretofore· stated, that assuming· the defendant is in a better position to know than the plaintiff of the existence of these two defects, the defendant. would be liable for failure to disclose. We have pointed out that the plaintiff and no.t the defendant was in the better position to knQw of these defects. The plaintiff thus bases his_ case on the theory that any one of six things may have


caused this injury, but he does not establish which one or more was the actual cause. For three of these there is clearly no liability on the defendant. For the other three, there would be liability, provided the defendant 'vas in a better position to know of them than the plaintiff. The case at bar thus falls under the familiar rule. that where there are some causes of an injury for which the defendant is liable, and other possible causes for which there is no liability, and the plaintiff fails to establish which was the cause, he has not made out his case. Our Court of Appeals, in quoting from a decision of the United States Supreme Court, has stated the principle applicable to the case at bar as follows, in T~V. & 0. D. Ry. v. lVeakley, 140 Va. 796, 806, 125 S. E. 672:

'' 'The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the employer has been g:uilty of negligence.' * * * 'It is not sufficient for the employee to sho·w that the employer may have been guilty of neg·ligence-the evidence must point to the fact that he was. And ~where the testi·mony leaves the ~matter u.ncerta·i1·t and sho·ws that any orw of a half a dozen tlvings 'may ha.ve brou.ght abont the injur;lJ, fm· so1ne of which the em-1Jloyer is responsible, and for SO'JJ?.C of ~vhich he is not, it is not for the .fury to .rtu.ess between these half a, dozen ca'uses and find that the negl·igence of the Mnployer was the 1·eal cause, ·1ohen there is not satisJacto1·y fou-ndation in the testimony for that couclusion. If the employee is unable to adduce sufficient evidence to show neglig·ence on the part of the employer, it is only one of the many cases in which a plaintiff fails in his testimony.' ''

To the same effect are:

Jere-my bnp. Co. v. ConunonweaJth, 106 Va. 482, 56 S. E. 224. .

Che.s. & 0. R.lf. Go. v. JT'hitl01r, 104 Va. 90, 51 S. E. 182. Honaker v. lVhitleJJ, 124 Va. 194, 97 S. E. 808. _ General Accident, etc., Corp. v. 111u.rray, 120 Va. 115, 90

S. E. 620. Kendricks v. J.lorfolk, 139 Va. 702, 124 S. E. 210. StonerJa Coke Co. v. Neece, 111 Va.. 302, 68 S. E. 977. (!hes. & 0. Ry. Co. v. Heath, 103 Va. 64, 67, 48 S. E. 508. Consunwrs Brewing Co. v. Doyle, 102 Va. 399, 46 S. E. 390. Northington v. Norfolk Ry., etc., Co., 102 Va. 446, 46 S.

E. 475.


Atlantiq, etc., Ry. Co. v. 1Yatkins, 104 Va. 154, 51 S. E. 153. N. & W. R. Co. v. Poole, 100 Va. 148, 40 S. E .. 627. Tu·rner v. Ji"a. Fire·works Co., 149 Va. 371, 141 ~-E. 142.

AsSIGNMENT oF ERRoR No. 2.

The Court erred in overruling the 1notion of the defendant to set ctside the verdict of the ju:ry and enter judgment in, its fa.vor on the ground that the plaintiff was guilty of contributory negligence as a 'matter of law (Tr., p. 10).

vVe are unwilling to admit that the defendant was guilty of any negligence whatsoever, but even should there be such negligence, the plaintiff as a matter of law was guilty of such neglig·ence as contributed to his injury, which would har his recovery. _

Contributory negligence as a matter of law is a complete defense to an action of this kind. The follo,ving cases are to this effect :

Meade v. Sawnders, 151 Va. 626, 144 S. E. 711. Hancock v. N. & fV. Ry. Co., 149 'la. 829, 844, 141 S. E. 849. Bassett & Co. v. Wood, 146 Va. ·654, 664, 132 S. E. 700. Penn R. Co. v. Jenkins, 119 ·va. 186, 191, 89 S. E. 96. 0. & 0. R. Co. v. Jones, 120 Va. 784, 789, 92 S. E. 820. Humphreys v. Valley R. Co., 100 Va. 749, 754, 42 S. E. 882. Capps v. Whitson, 157 Va. 46, 160 S. E. 71.

The plaintiff was guilty of contributory negligence in the manner in which he inflated the tire. The plaintiff's expert, Rappley, in discussing the construction of the equipn1ent, stated that there was on each side a side rim, but on the side opposite where the plaintiff stood there was a flang·e that holds the side rim on (Tr., p. 35). N o,v, if the rim could not come off on one side and on the other side the lock rim could, it is self-rtpparent that the safe way to infl~te a tire would be to get on the side of the tire where there was no possibility of such an injury, for e'ren if the lock rim did fly off then, it would not hit any one. Notwithstanding this selfapparent physical fact, the plaintiff testified that he had stood on the side of the tire where the rim flew off (Tr., p. 72). He stood on the side of the tire which was unsafe, and as a result of his own negligence in standing on that side, he received the injury. Had he been on the other side, it is obvious that the injury would not have occurred. We are well aware of the fact that C. W. Armistead (Tr., p. 60) tes-


tified that this was the proper manner to inflate the tire and that the plaintiff stated that he regarded it as the safe method (Tr., p. 72), but the physical facts establish that this was the unsafe method, and hence the evidence that it was the safe method is inherently incredible on its face. For the Court to accept this evidence, i. e., that the safe method of inflation was to stand on the side where there was a possibility of injury when there was no possibility of injury by standing on the other side, would be to accept as true that which is incapable of being true. For the Court to sustain a verdict which rests upon such evidence would be to place that verdict on evidence which is impossible. Similar questions have frequently arisen in our Court of Appeals, and that Court has always disregarded incredible evidence.

See:

Sotdhern Ry. Co. v. Davis, 152 Va. 548, 147 S. E. 228. C. & 0. Ry. Co. v. Anderson, 93 Va. 650, 25 S. E. 947. Va. rt 8. TV. Ry. Co. v. Skinne1·, 119 Va. 843, 89 S. E.

887. Equitable Jnsu1·ance Co. v. Stiejfens, 154 Va. 281, 153 S. E.

731. Norfolk & W. Ry. Co. v. Ha.rcly, 152 Va. 783, 148 S. E. 678. C. & 0. Ry. Co. v. Barlow, 155 Va. 863, 149 S. E. 419. Johnson. v. R. F. & P. Co., 160 Va. 766, 169 S. E. 603. Ellison v. Railway Co., 154 Va. 39, 1.52 S. E. 373. Va. Ry. tf; P. Co. v. Baltz, 122 Va. 649, 95 S. E. 467. Shoe.rnaker v. Andrews, 154 ·va. 170, 152 B. E. 370. Vanden.bergh v. Buckinghan~ Corporation, 142 Va. 397, 128

S. E. 389. lJ!Iitchell v. So. Ry. Co., 118 Va. 642, 88 S. E. 56. J( elly v. Schneller, 148 Va. 573, 139 S. E. 275. Sau·nders v. Tmnple, 154 Va. 714, 153 S. E. 691. Harvey's Case, 103 Va. 850, 49 S. E. 481. Vance v. Cot1l/monu~ealth, 155 Va. 1028, 154 S. E. 512. Grinnelle v. Commonwealth, 157 Va. 915, 161 S. E. 888. Scoggin v. Com.1non.wealth, 158 Va. 888, 163 S. E. 83: White v. Greyhound J.firtes, 158 Va. 462, 163 S. E. 78. Brooks v. Cotn·monwealth, 145 Va. 853, 134 S. E. 726.

In the plaintiff's testimony, he gave as his reason for standing on the side ·where the rim was liable to come off that he was standing on the side where he could see the rim and if he had set the tire flat on the ground, he could not have seen the rim (Tr., p. 73). We do not contend that the proper

16 Supreme Court of Ap_p€als of Virginia.

method was necessarily to lay the tire down, but we do contend that the proper method is to g·et on the side where there is no likelihood of injury. And he could certainly have looked at the rim had he stood up and stayed on the proper side. Instead of standing up on the proper side, he stooped over on the wrong side-the dangerous side-all to see the rim. What good his seeing the rim did in this case !

Tl1at the plaintiff chose the dangerous one of two n1ethods is certainly quite obvious, as we have shown that had he chosen the other method, there would have been no injury. In other words, there were two methods of inflation, one of them safe and the other unsafe. The plaintiff chose the unsafe method. He was, therefore, guilty of negligence, and there can be no recovery, for our Supreme Court has frequently held that when there are two methods of performing an act, one safe and the other dangerous, and the party chooses the unsafe method, he cannot recover.

We would like to call the Court's attention to the case of Ward v. Clark, 163 V a. 770, 177 S. E. 212. In this case the plaintiff was a tenant in an apartment building. During the night-time, considerable sleet and snow had fallen, 'vhich rendered the front steps of the apartment building dangerous. There 'vere some back steps, leading from the plaintiff's apartment, on which there was no ice, but which 'vere dusty and narrow. This back entrance was nothing like as nice nor as convenient as the front entrance. The plaintiff used the front entrance, slipped and fell on the ice and brought suit against her landlord for failure to have these steps cleaned. Our Court of Appeals held that as a matter of law the plaintiff was g·uilty of contributory negligence in not taking the safe way, although that 'vay was nothing like as convenient nor as nice as the front door.

See:

81noot v. Johnson, 114 Va. 454, 76 S. E. 911. Newport Ne·ws Publishing Co. Y. Beaumeister, 102 Va. 677,

47 S. E. 821. . Street v. Norfolk & H'. R. Co., 101 Va. 746, 45 S. -m. 284.

CONCLlJSION.

Because of the errorR assigned, your petitioner prays that .a writ of error from and a supm·sfdeas to the Raid jndQ.'ID{lnt of tl1e Law and Equity· Court of the City of Ricb1nond, Part

C. D. Kenny Co. v. \rVilliam James Dennis. 17

II, be awarded; that if either of the assignn1ents of error be well taken, the judgment of the trial court be reversed and :final judgment entered here in favor of your petitioner, and that such other relief be afforded as to the Court seems proper.

You;r petitioner having executed a suspending. bond, in accordance with Section 6338 of the Virginia Code as amended by the Acts of the General Assembly of 1934, conditioned as required for a s~tpersedeas bond in Section 6351 of the Code, as amended, in the penalty of $3,500.00 (Tr., p. 107), it is respectfully requested that if the writ of error and supersedeas be awarded, your petitioner not be required to execute a further s.upersedeas bond.

Respectfully submitted,

C. D. KENNY COMPANY, A Corporation,

By SINNOTT & MAY, BENJ.AMIN R. BRUNER,

Counsel.

vVe, John G. May, .Jr., and Benjamin R. Bruner, attorneys practicing- in the Supreme Court of Appeals of Virginia, do certify that, in our opinion, the ·judgment of the Law and Equity Court of the City of Richmond, Part II, in the action at hnv wherein William James Dennis was plaintiff and C. D. l{enny Company, a Corporation, was defendant, rendered on the 14th day of April, 1935, a transcript of the record of which is attached hereto, is wrong and should be reviewed and reversed by the Supre1ne Court of Appeals of Virginia.

Given under our hands this 20th day of September, 1935.

Rec'd Sept. 20, 1935.

JOHN G. l\1:AY, ,JR., BENJAMIN R. BRUNER.

M. B·. WATTS, Clerk.

Nov. 8, 1935. 'Vrit of error and supersedeas awarded by the Court. Bond $3,000. •

M.B.W.

18 Sup~eme Uourt of .Appeals of Virginia.

RECORD

VIRGINIA:

Pleas before the Honorable Frank T. Sutton, Jr., Judge of the Law and Equity Court of the City of Richmond, Part Two, held for the said City at the court room thereof in the City Hall on the 16th day of May, 1935.

Be it remembered that heretofore, to-wit: In the Clerk's Office of the La'v and Equity Court of the City of Richmond, Part Two, on the 24th. day of March, 1934, came William James Dennis, by counsel, and :filed. his Notice of Motion for Judgment against C. D. ICenny Company, a corporation, which Notice of Motion for Judgment is in the words and :figures following, to-":it: ·

''Virginia :

In the Law and Equity Court of the City of Richmond, Part II.

William James Dennis, Plaintiff, v.

C. D. Kenny Company, a Corporation, Defendant.

NOTICE OF l\10TION FOR .JUDGMENT.

To C. D. l{enny Company, a corporation:

Take notice that on the 9th day of April, 1934, at 10 o'clock A. M. or as soon thereafter as the undersigned, Willian1

James Dennis, hereinafter called the plaintiff, can page 2 ~ be heard, the plaintiff will move the Law and Equity

·Court of the City of Richmond, Part II, in the court room in the City Hall of said City for .Judgment against you, C. D. Kenny Company, a corporation org-anized and existingunder the laws of the State of J\faryland with offices in the City of Richmond and State of Virp:inia, hereinafter called the defendant, for the sum of Ten Thousand Dollars ($10,-000.00) due to the plaintiff by the defendant by reason of the following facts :

That heretofore, to-wit: on and before the 3rd day of May, 1933, the said defendant was the owner and operator of a certain motor truck operated and used in and about the con-


duct of its business in the City of Richmond, State of Virginia, that necessary and essential parts, portions and attachments of such motor truck were the wheels, rims, rings, bands, pneumatic tires, locking rings, etc., used thereon, and thereupon it became and was the duty of the said defendant to use, operate, maintain and repair the said motor truck, its wheels, rims, rings, bands, pneumatic tires, locking rings, etc., in accordance with the laws of the State of Virginia; to use ordinary care and prudence in the use, operation, maintenance and repai-r of the said· motor truck, its parts, portions and attachments aforesaid, so as not to injure others, and more particularly the plaintiff; that it was the further duty of the said defendant to employ competent servants, agents and/or employees to use, operate, maintain and re-

pair the said motor truck, its parts, portions and pag·e 3 ~ attachments as afores·aid.

. That on or about the . 3rd day of May, 1933, the said defendant, notwithstanding its duty and duties aforesaid, did carelessly and negligently fail to employ competent servants, agents and/or employees to use, operate, maintain and repair the said motor truck, its parts, portions and attachments aforesaid, and did through its servants, agents and/or employees carelessly and negligently use, operate, · maintain and repair a certain tire used on the said truck and did improperly assemble, reassemble and mount the said tire onto the said rim aforesaid in a careless, negligent and reckless manner, and therefore did know or should have known or was charged with the knowledge of the condition of the said rim and tire mounted as aforesaid; that it was the further duty of the said defendant to notify and warn the said plaintiff of the said defective mounting and inse 4

cure and dangerous condition of the said rim and the parts thereof, and to put him on notice of the condition of the said rim and tire mounted as aforesaid so as to avoid injury to persons and particularly the plaintiff while exercising ordinary care and prudence upon his part.

Yet the said defendant did carelessly, negligently, recklessly, wrongfully and without due regard for the safety of others and more particularly this plaintiff, fail to warn and notify the said plaintiff of the dangerous condition of the said motor truck, its wheels, rims, rings, bands, pneumatic tire, locking rings, etc., and on or about the said 3rd

day of ].fay, 1933, at the Old ]/farket Garage in the· page 4 ~ City of Richmond, State of Virginia, requested, di

rected, permitted and allowed the said plaintiff, an employee of the said garage, to inflate the said tire with compressed air without informing him of the said dangerous


condition, and the plaintiff without kno,vledge of the said dangerous condition did proceed to inflate the said tire, and as a proximate result of the said negligence and breach of the aforesaid duties of the said defendant, a part, portion or attachment of the said rim was caused to, and did fly off with great force and violence striking the plaintiff with great force, seriously and grievously injuring him in and about his head, face, jaws, mouth, and other parts of his body, both internally and externally to his permanent injury and disfigurement and he was thereby prevented ,from attending to his usual affairs an<l suffered gTeat bodily pain and mental anguish and was caused to expend large sums of money in endeavoring to be cured of his said hurts, wounds and injuries so received.

All to the damage of the plaintiff in the sum of Ten Thousand .Dollars ($10,000.00), and therefore he gives you this notice of motion for judgment.

VVILLIA~I JAl\iES DENNIS,

JOSEPH SHAROVE, HAROLD H. DERVISHIAN,

p. q .

By Counsel.

. page 5 ~ And at another day, to-wit: At a Law and Equity Court of the City of Richmond, Part Two, held

the 9th day of April, 1934. This day came the plaintiff and defendant, by counsel,

and on the motion of the plaintiff, by counsel, it is ordered that this case be docketed and continued.

And at another day, to-wit: At a Law and Equity Court of the City of Richmond, Part Two, held the 9th day of April, 1934.

This day came the plaintiff, by counsel, and on his motion it is _ordered that the defendant do file herein a statement of the grounds of its defense to ·this action 'vi thin twenty days from this date.

And at another day, to-,vit: At a Law and Equity Court of tlie City of Richmond, Part Two, held the 28th day of April~ 1934. · · This day came the defendant, by counsel, and by leave of

Court filed herein a statement in writing of the grounds of its defense to this action.

--..._


page 6 ~ Virginia :

In the Law and Equity Court of the City of Richmond, Part II.

William James Dennis, Plaintiff, v.

C. D. Kenny Company, a Corporation, Defendant.

GROUNDS OF DEFENSE.

Comes now the defendant and, for his grounds of defense, says: : I i ·I

(1) That it denies each and every material allegation of the plaintiff's notice of motion;

(2)· That it was guilty of no act or acts of negligence which proximately caused the injuries complained of;

(3) That the injuries complained of were the result of an unavoidable accident;

( 4) That the automobile rim, tire and tube were turned over entirely to the plaintiff and he assumed to put aii~ therein according to his own discretion; that while the plaintiff was in the act of inflating the tire it burst, blew out or exploded, causing the injuries complained of;

( 5) That the riin, tire and tube 'vere simple tools about which the plaintiff was more familiar than was the defend~ ant, and the risk of injury concerning which he assumed;

(6) That without admitting the plaintiff was page 7 ~ guilty of any negligence, nevertheless says that the

plaintiff was negligent in that he:

(a) Put too much air in the tire; (b) Inflated it while it was standing. up with the rings or

rims facing him, the proper method being to do so with it lying· flat on its side or with the rings or rims a'vay from him.

C. D. KENNY C01IP ANY, A Corporation.

By SINNOTT & MAY, Counsel.

page 8 ~ And at another day, to-wit: At a Law and Equity Court of the City of Ricl1mond, Part T,vo, held the

20th day of July, 1934. 'Phi!=; day came again the plaintiff and defendant, by conn-


sel, and thereupon the defendant, by counsel, moved the Court to permit it to amend its grounds of defense as follo,vs: Paragraph 6 (b), by adding· after the words "standing up" the following words: ''with the rings or rims facing him;'' and by adding· after the word ''side'' the following 'vords: ''or with the rings or rin1s away from him." And the said motion being· g-ranted, it is ordered that the said grounds of defense be so amended. And thereupon the defendant pleaded ''not g·uilty" and put itself upon the country and the plaintiff likewise.

And thereupon came a jury, to-wit: Hugh F. Rose, Robert E. Scales, Robert G. Rennolds, S. Rutherford Rose, Jr., G. How~:rd Redel, Thomas L. Ruffin, and Frank C. Fisher, being sworn well and truly to try the issue joined in this case and having heard the evidence were .adjourned until tomorrow n1orning at ten A. M.

pag·e 9 ~ And at another day, to-wit: At a Law and Equity Court of the City of Richmond, Part Two, held the

21st day of July, 1934. This day came again the plaintiff and defendant, by coun

sel, and the jury s'vorn in this case on yesterday.appeared in court in accordance 'vith their adjournment and having heard the arguments of counsel were sent out of court to consult of a verdict and after some time returned into court ·with a verdict in the words and figures following, to-wit: "We the Jury, on the issue joined find for the plaintiff and assess his damages at T'venty-two hundred and :fifty dollars ($2,-250.00)." Thereupon, the defendant, by counsel, moved the Court to set aside the said verdict of the jury as contrary to the law and the evidence and for other reasons set forth in writing and now made a part of the record, which motion the Court continued for argument to be heard thereon.

page 10 ~ (Filed July 21st, 1934.)

Thereupon the defendant moved the Court to set aside the verdict of the jury and enter judgment in its favor or award it a new trial on the grounds that (1) It was contrary to the law and the evidence; {2) without evidence to support it, (3) that there was no evidence of primary negligence of the defendant; ( 4) that the plaintiff 'vas guilty of contributory neglig-ence as a matter of law, (5) that the Court misdi'rected the jury in instructing them over objection of the defendant.

And the motions are continued.


page 11 t And at another day, to-wit: At a Law and Equity Court of the City of RiGhmond, Part Two,

held the 13th day of April, 1935. This day came again the plaintiff and defendant, by coun

sel, and the Court having heard argument upon the motion of the defendant to set aside the verdict of the jury rendered in this case and now being advised of its judgment to be rendered herein doth overrule the said motion; to which action the defendant excepted.

Therefore it is considered by the Court that the :Qlaintiff recover against the defendant the sum of Two thousand, two hundred fifty dollars, with interest thereon to be computed after the rate of six per centum per annum from the 21st day of July, 1934, until paid, and his costs by him about his suit in this behalf expended; to which action the defendant excepted.

~IeJ;Dorandum: Upon the trial of this c~se the defendant, by counsel, excepted to sundry opinions of the Court given against it and on its motion leave is hereby given it to file bills of exceptions or certificates of exception herein at any time within sixty days from this date as prescribed by law.

And the defendant having indicated an intention to apply to the Supreme Court of Appeals of Virginia for a writ of error and supersedeas to said judgment, execution thereon is

suspended for a period of six months from this page 12 ~ date, and until the appellate court has acted on a

petition for a writ of error, presented to said court, or one of the justices thereof, within six months from this date, and until this court shall thereafter authorize execution to issue, upon condition, however, that the defendant, or some one for it, shall, within twenty days from this date enter into bond in the clerk's office of this court with surety to he approved by its clerk in the penalty of Thirty-five hundred dollars with all t.he conditions prescribed by Section 6351 of the Code of Virginia relating to supersedeas bonds.

page 13 t And now at this day, to-wit: At a Law and Equity Court of ·the City of Richmond, Part Two,

held the 16th day of ~fay, 1935. On the motion cf the defendant, C. D. Kenny Company,

by counsel, and after due written notice to the plaintiff, the stenographic transcript of the testimony and other incidents of the trial in this case was authenticated pursuant to Rule 24 of the Supreme Court of Appeals by the Judge of this


Court and is ordered to be made a part of the record in this case.

page 14 · ~ Virginia :

In the Law Equity Court of the City of Richmond, Part II.

Willian1 James Dennis v.

C. D. Kenny Company, a Corporation.

Stenographic report of testhnony and other incidents of the trial of the cause of \Villian1 James Dennis, as plaintiff, against C. D. l{enny Con1pany, a Corporation, as defendant, in the I.~aw and Equity Court of the City of Richmond, Part II, before Honorable Frank T. Sutton, Jr., and a jury, which trial began on the 20th day of July, 1934, and ended on the 21st day of July, 1934. The plaintiff 'vas repre_sented by Joseph Sharove, Esq., and Harold H. Dervishian, Esq., and the defendant by Sinnott and May (John G. May, Jr., Esq., and Benjamin R. Bruner, Esq.).

page 15 ~ ALL OF THE TESTII\IONY OF THE CASE.

EVIDENCE FOR PLAINTIFF.

DR. A. M. W A.SH, being first duly sworn, testified as follows:

DIRECT EXA1\1INATION.

Bv Mr. Sharove: ··Q. Will you please state your name and residence? A. Dr. A. M. Wash; office, Medical Arts Building, Rich

mond, Virginia. Q. What is your profession f A. I am dentist, but with my practice limited to mouth

surgery and ·X-ray. Q. Do you specialize in that~ A. Yes. Q. How long have you been practicing in that linef A. I graduated in 1919 and taught. until1928. Have been

in practice since then. Q. Of what school a.re you a graduate·? A. Medical College of Virginia.

· Q. What institution are you no'v officially connected with 1 A. Connected with the same institution.


Q. Did you attend William James Dennis, the plaintiff in this case?

.A. Yes, I did. Q. When did you first attend him?

page 16 ~ A. He was admitted to Memorial Hospital on the 5th day of May, 1933. I saw him a few days

later. I have not the exact date. Q. Did you treat him at this time ~r A. I did not treat him. He was under my observation at

thi~ time. Q. In what condition was he the first time you sa'v him Y A.. He was suffering with a compound comminuted frac

ture of the upper jaw bone and palate laceration of the lips and the gums in his mouth, upper and lower, and, also, a fracture of the lower jaw bone, near the mid line, that is, the middle of the chin, with laceration of the lower jaw, too, and the loss of quite a number of teeth. He lost :fifteen teeth in all as a result of the accident, but they were not all lost at this tin1e; but they had to be taken out at a lower date.

Q. vVhen did you next examine the plaintiff? A. I saw the patient during· his first stay in the hospital,

which was from June 3rd to the 30th. He was discharged fron1 the hospital on the BOth, and subsequently admitted again on July 21st. During· the thne he was was in the hospital I saw him quite frequently. I don't know ho'v many times.

Q. '\rhat did your examination reveal at the second time you attended him in the hospital T

pag·e 17 ~ A. The old wound had not healed and he had a disease called qsteomylitis, which is a bone dis

ease of the upper jaw. He also had some broken teeth, fractured teeth.

().. Did yon tr(\at him for this condition? A. I did. Q. vYill you tell the jury just what treatn1ent he went

through f A. I opened up the soft tissue of the upper jaw; removed

nH the fractured teeth and the diseased portion of the bone. I also extracted a small piece of the diseased bone from his lower jaw.

Q. Doctor, has part of his jaw bone heen removed Y A. Yt~S. Q. \Vhat is your opinion, Doctor, as to whether or not the

plaintiff has suffered permanent injury? . A. I would consider the injury a permanent injury, in

that he has ]oRt part of the bone, and he· has lost fifteen teeth,

. 26 Supreme Uou rt of .Appeals of Virginia .

, which cannot be replaced bv any other means than artifi-cial means. ·

Q. Is normal mastication possible~ A. No. . Q. Assuming- that he has artificial teeth placed in his mouth

'vould he be able to enjoy his food to the same expage 18 ~ tent that he did before he 'vas injured¥

A. No, I don't think he would, because about half of his mouth would he artificial.

Q. Doctor, ";hat type of plate would this plaintiff have to have put in his mouth? Would it differ from the ordinary plR1e used for false teeth 1

A. It would be the same as an ordinary plate, except that it would have to be a little thicker to supply the lost portion of b0ue.

Q. \Vould this plate have to follow the deformity of his nlouth7 ·

A. Jt would follow the outline of ·his jaw as it is at the time the plate is made.

Q. '\Vould this plate be fastened in his mouth in any different _manner than the ordinary plate Y ·

A. There are different types of partial plates that are put in mouths. This one would have to be held in place by· a clasp around the adjoining teeth.

Q. Have you taken an X-ray of the plaintiff recently¥ A. Yes, I X-rayed him on July 11, 1934. Q. What did this disclose? A. The X-ray did not sho'v anything more than I have

already explained, except that there a few small segments of bone working out through the upper gum. Healing has

taken place fairly well. page 19 ~ Q. Doctor, is there a tendency of people who have

lost their permanent teeth to minimize the seriousness of losing permanent teeth 1

By Mr. May: We object to that question, on the ground of its immaterialitv.

By the Court: Do you want to be heard on it? By Mr. Sharove: No, I will ask that a different way.

Q. 'Vhat would you say will be the effect of this plaintiff's injury on the rest of his teeth?

A. N obodv knows how much of a blow the rest of his teeth got in "the accident. That would be a rather hard question to answer, because the teeth may have received quite a severe blow and they 1nay not ~ave.

C. D. Kenny Co. v. William James Dennis., 27

Q. Is there any probability of an abscess forming in his teeth?

·A. Yes, I would· say there is a probability. Q. "\Vould you say he will have an artificial condition in

his teeth' · A. Yes, there will .have· to be an artificial denture. Q. Woul~ you say the plaintiff's speech has become im

paired hy reason of his injury? A. I don't think I could answer that question. I did not

know him before the accident. Q. Has this plaintiff suffered a permanent fa

page 20 } cial disfigurement, Doctor? A. Yes, I think he has. ·

Q. Have you presented a bill for your services in connec-tion with this patient?

A. Yes, I have. Q. What 'vas the amount of that bill, DoctorY A. $150.

By l\{r. Sharove: If your Honor please, I wish to offer this bill in evidence.

By ~ir. 1\'Iay: I object, if your Honor please. I submit it is already in the evidence. It would just encumber the record to now put the bill in the record.

By the Court: I don't see anything to add to it by putting it in the record. The Doctor says his bill is $150.

(The witness stood aside.)

pag·e 21} JAMES LESLIE LEWIS, another 'vitness introduced on behalf of the plain

tiff, being first duly sworn, testified as follows:

DIRECT EXAMINATION.

Bv I\'Ir. Sharove: 'Q. What is your name.and where do you live? A. My name is James Leslie Lewis, 1921 J. Street, Rich-

mond, Virginia. • Q. Where were you employed .on May 3, 1933 7 A.. I was employed at the C. D. Kenny Company. Q. What was the address of this Company' .... ~. 17th and Main Streets. Q. Ho'v long had you been employed by them Y A.. I was employed with them six or seven months. Q. "\Vhat kind of work did you do for them 7 A. I was porter and driver of the truck.


· Q. Did you hold a chauffeur's license? A. Yes, sir. Q. Did your duties at C. D. l(enny Company's ever require

you to repair tires? .A. Yes, sir, when they go flat. Q. VV11en you repaired tires for C. D. l(enny Company did

you do this work by yourself, or did you have help? A. Sometimes I usually had help. Q. On 1\Iay 3, 1933, did you repair a tire?

A. Y cs, sir, I repaired a tire. page 22 ~ Q. About what tin1e of day 'vas this?

A.. It was in the afternoon. Q. What sort of 'vork had you been doing that day 7 A. I had been hauling sugar that day. Q·. Please state whether or not that tire had been in use

on that day? A. That tire had been in use. Q. On l'Iay 3rd? A. Yes, sir, on 1vfay 3rd. Q. On which truck was that tire being used on May 3rd f .ll. It 'vas used on the White trttck. Q. Was that the truck that you had beeu hauling sug·ar

with that dav? A. Yes, sir, that 'vas the truck. Q. Will you please tell the jury whether it became neces

sary for you to fix that tire f A. It became necessary as I was hauling sugar from down

at the boat shed. The tire had a puncture, a nail was stuck in it. When I was driving· the truck up from the boat shed with the sugar the tire 'vas going flat all the thne. I drove it to the store and after I g·ot to the store I told Mr. l\Iartin that that tire 'vas flat and I took the flat tire off the truck and carried it back in the back and put the spare tire on.

Q. Who is Mr. ~{artin? page 23 ~ A·. He is the manager of the C. D. }{enny Com-

pany. Q. Please tell in your own words just what you did with

the tire that went flat? A. The tire that "aeut flat I fixed it that afternoon. Q. Did you have .any trouble in fixing it? A. I had some trouble with the rim. By running on the

rim that caused the rhn to be sprung and I had rig·ht much trouble ~etting it back on again.

Q. What do you mean when you say it caused the rim to be sprung?

A. I mean the . rim was in a round circle and being sprung


it was out like this (illustrates with his hands), instead of being round like it should have been.

By l\1:r. May : Q. You say the ends were in that position rather than op

posite each other, is that right f .1:\.. ·Yes, sir, the rims 'vere round and were like this (indi

cating) ; they were sprung.

By ~[r. Sharove : Q. Were they bent like this? .,:\, Yes, sir. .

By l\1:r. Sharove: If your Honor please, one of the rims and tire that were taken off the. same White truck are here

and by agreement of counsel on the other side we page 24 ~ "rould like to introduce that tire and run in evi- ·

dence. By the Court: I understand counsel introduce this by way

of illustration and not as an exhibit, is that correct. By ~Ir. l\:fay: I shall introduce it as an exhibit later. By the Court: I 'vas speaking· of at this time. I shall at

tend to that later, 'vhen the time arises. At this time is it used as an exhibit 1

Bv Counsel for Plaintiff: vVe offer it as an illustration at ti1is time.

Bv ~[r. Sharove: .. Q. James, will you show the jury which part of the rim

was bent? A. (Witness indicates.)

By Counsel for Plaintiff: We would like to put in a stipulation that the little ring· is kno'vn as a wedge, and this larger ring (indicating) back of it is known as a side rim of flange.

Bv l\{r. Sharove: · Q. How did you finally g·et that looking rim in place on

the tire¥ · A. I finally g·ot it in place by using a hmmner and , screw

driver by hitting it and using the screw driver to prize it in there.

Q. Did it take longer for you to repair this tire page 25 ~ than it had other tires you repaired?

By Mr. ~fav: I object to that on account of itf-l immate-riality. ·


By the Court: Let him explain what he would have to do.

Q. How long did it take you to mount this particular tire! A. It took me a pretty good while, on account of the rim

was sprung; so I had to g·et it back in place It took 1ne longer than usual. ·

Q. Did you look at the equipn1ent after you had assemble~ UY .

A. Yes, sir, I looked at it and it seemed. to be fitted in in perfect shape. ·

Q. Ho·w did it appear to you~ A. It appeared to me that it was fitted in in perfect shape

after I got it back together again. Q. Fitted it in in perfect shape to put air in 7 A. You mean after I put air in it' Q. No', afte-r you fixed it? A. After I fixed it, it seemed to be in perfect shape. Q . .After you had p:ut the equipment back in shape what

did you do? A. I rolled it in front of the store and told Mr. Martjn I

would carry it to the· service station to put air in it. Q. Wbat did he say?

A. He said all right. page 26 ~ Q. Then, what did you do?

A. I rolled it around to the service station. Q. Wbat did you do after you got to the service station 1 A. After I got to the service station I set the· tire up and

I started to put air in it, and, after I put some air in it, I called James Dennis over and I told him to get me the air gaug·e and he brought the air gauge back to me, and then I handed him the air hose and then he tested it first and ~ound I had put eighteen or hventy pounds of air in it; then I gave him the air hose and I told him to put around eighty pounds of air in it, and just as he put the air in it, he had the air hose on about a second, then the rim fle·w off and s~ruck him and knocked him out.

Q. How did you get the tire to the Old Market Garage? · A. I rolled the tire around there to the Old Market Ga-

rage. Q. Ho·w far is the Old Market Garage from C. D. Kenny's Y A. It is about a block and a quarter from C. D. Kenny's. Q. Vvhere was James Dennis when you got to the garage·? A. He was standing beside the barber sl\~p, talking to some

~ore fellows. Q. vVlten you got to the garage and before you began to

. put air in the tire, yourself, in what position had you placed the tire?

C. D. Kenny Co. v. Willia:m James Dennis. 31

A. The tire rim edge was by the pump. The page 27 ~ rim was facing the Old 1\f.arket Garage.

Q. You mean the locking rim was facing the Old Market Garage?

A. Yes, sir, the locking rim was facing the Old Market Garage.

Q. Had you ever put air in any other tires for C. D. Kenny of the same kind?

A. Yes, Rir. Q. Was this the same position you had used in putting air

in the others Y .A. Yes, sir, that was the same position. Q. Do you remember which wheel of the truck this tire

came off of? .A. It 'vas off of the hind wheel on the left side. Q. When you put air in this tire on which side of the tire

were you standing? .A. I was standing between the tire and the Old Market

Garage. Q. Did you move your position when James Dennis came

there? A. vVhen James Dennis came I came around on the other

side of the tire to hold it for him. Q. 'Vas the tire still standing up, or did you lay it down t A. The tir.e 'vas still standing up.

Q. If you had not held it, state whether or not page 28 r the th-e would have fallen down on the side!

A. The tire would have fallen down on the side if I had not held it up.

Q. How did James Dennis g·et the air hose? .A. I handed it to him. Q. .At 'vhose request did he start putting the air in the

tire? A. .At my request. Q. Can you state how much air James Dennis had put in

the tire before the rim and ring· flew o:ffY .A. He just held it about a second, then the rim flew off. Q. State, if you can, whether or not the tire blew out Y .A. The tire did not blow out.

CROSS EXAMINATION.

By Mr. May: Q. How many times did Dennis put that air gauge on the

tireY · .A. He just put it on there once.


Q. You don't recall that he put it on the second time and it registered forty pounds then?

·A. I certainly do not.

By Mr. May: These tires and rims we have been talking about, if your Honor please, I have some one to

page 29 ~ dismount it at this time. By Counsel for Plaintiff: If Your Honor

please, I would like to use it while it is inflated .. By the Court: I thought you had finished with this wit

ness. By Counsel for Plaintiff: I have finished with this wit

ness, but want to use it with an expert witness. I will put him on next.

By Mr. May: Q. ,James, I want you to come down here and sho'v me the

rim that you said was sprung-just take it out of there? A. This is the rim that was sprung. Q. That is what you mean by sprung, is it, where the ends

cannot come in line with each other? A. Yes, sir, not in line with each other. Q. Did you mean anything else when you told the jury that

t~e rim was sprung other than that their points were not in opposition?

A .. No, sir, I don't mean nothing else. Q. Then, the rim is sprung now, is it not¥ A. Yes, sir, it is sprung no,v. Q. In fact, they are about an inch or so out of line with

each other, are they not? A. Yes, sir. Q. That is the lock rim, the s1naller rim, is it not 1

A. Yes, sir. page 30 ~ Q. This is made out of spring steel, is it not?

A. I don't know whether it is made out of spring steel, or not.

Q. What other ring or rin1 is there on the same side that that steel spring rim came off of that holds the lock rimY

A. This one here. · Q. Take that off? A. Yes, sir. Q. Can you bend that rin1? A. No, sir, .you cannot bend that. Q. Was that sprung on the tire you put on? A. No, sir. Q. The locking rim 'vas the only one that was sprung? A. Yes, sir.

C. D. Kenny Co. v. vVilliam James Dennis. .J3

. Q. How about the rim that holds the tire, was that sprung? A. I don't kno'v; it seems all right to me. Q. What other rims are there on the same side you took

the lock him off of besides the one you hold in your hand 7 A. These are the onlv hvo on there. Q. Turn the tire over ·on the other side 7 A. All right. Q. Is there a rim on that side? A. There seems to be one on that side.

Q. Take ~t off i page 31 ~ A. All right.

Q: I just want to know if there is a rim separate from this on this side. We had some difference whether it was a part of the same rim, or an independent piece. Is

· there any other separate riln on that there other than the two you rook off there 1

A. These are the only two, I took off. Q. Can you take any more off of the main rim; is there

one on the bottom side f A. I don't know; that is the only two I took off and took

off the tire. Q.· See if you can take off another? A. I have never tried to take off any other. Q. Is there any other 1 A. I don't kno,v, sir. Q. Will you investigate and give us the benefit of what you

find? A. There ure two vou take the tire off with. Q. Can you tell us \vhether that is a part of the main rim;

is that a part of the rim, or is that a separate piece? A. It seen1s to me like they are joined on. I don ''t know

whether they are separate or not.

By Counsel for Plaintiff: If your Honor please I would · like to have that taken apart, to see. whether they

page 32 ~ are separate pieces. · Bv the Court: One at a time. When Mr. May

finishes I will iet yon have it taken apart.

By 1\fr. 1\{av: · Q. So, that little spring you spoke of in that rim, you

got that so it looked to you like it fit perfectly, did it not? A. ·Yes, sir. Q. Was that what hit him later? A. Both of them came off. . Q. When you were putting the air in the tire, the rims that

you took off there, were they .facing James Dennis Y

34 Supreme Uourt of Appeals of Virginia.

A.. They 'vere facing James Dennis. Q. Was there anything to prevent him seeing they were

facing him, if he was fixing the tire and looking at it Y A. No, sir, nothing to prevent him seeing them. Q. As a matter of fact, those rims don't perform their full

function and lock it until the air presses the1n out, do they Y A; If you put them in there that is when it locks, you see. Q. You mean when the air presses them outward, they

lock¥ A~ I don't know; I could not say exactly.

By l\1:r. lVIay: If your Honor please, I would like to have the tire taken off the rim.

By the Court : All right.

page 33 ~ N ote.-The tire 1s dismounted from the rim at this point.

By Mr. May: Q. James, cari you look at it now and tell whether it is

one or two pieces Y A. It seems to me there are two pieces.

By 1\fr. May: I object to that answer, your lionor, because it sho·ws for itself it is only one piece.

By the Court : The jury can see it. By Juror: Is that the original tire rim?

Note: . Counsel agree that this is similar to the one in question.

Q. What is there holding· the two pieces in that rim to-gether?

A. I don't know .. Q. Is anything holding them together Y A. I don't know what holds them together. Q. Why, then, do you say there are two pieces instead of

oneY A. I say, it seems to be- two to me.

RE-DIRECT EXAMINATION.

Bv 1\fr. Sharove: .. Q. James, you have testified you have taken that kind of

rim and tire apart beforef A. ·Yes, sir.

C .. D. Kenny Co. v. William James Dennis. 35

Q. How many pieces was the rim in when you page 34 } took it apart before'

A. I just took the first two pieces off.

(The 'vitness stood aside.)

C. A. RAPPLEY, another witness introduced on behalf of the plaintiff, being first duly s'vorn, testified as follows:

DIRECT EXAMINATION.

By Mr. Sharove: Q. Please state your name and address? A. C. A. Rappley, 3427 West Grace Street, Richmond, V a.. Q. In what business are you engaged Y A. In the wheel and rim business. Q. How long have you been engaged in this kind of busi

ness! A. Over hventy year.

I Q. In 'vhat capacity are you no'v acting?· A. As ·~r anager of the Dixie Wheel Company. Q. With 'vhat firms and in "rhat capacity have you acted T A. I 'vas with Kelly-Hayes for 14 years. They were sepa-

rate firms and consolidated. I was Sales-1\{anager for eight vears . .. Q. "\Vhat did the Kelly-Hayes people doT

A. 1\{ade wheels and rims for both passenger pag·e 35} cars and truck equipment.

Q. What has been your experience with wheels and rims?

A. Selling, service and repairing. Q. Are you acquainted with all the wheels and rims used

in the automobile industry? A. Yes. We manufacture every type of wheel and rim. Q. I will ask you to look at this equipment and say whether .

or not you are familiar with that type of rim7 A. Yes, sir. Q. What type of rim is it? A. Firestone Type B 3445. Q. Will you state how many pieces that rim consists of7 .l1.. There is a. piece, two rims and a lock rim that holds

, this side. Q. There are four pieces? A. Yes. Q. Explain the function of each part of the rim T A. Both of these side rims are alike, except this has a


flange that holds them on; then there is a lock rim and a clamp to hold this lock rim on.

By the Court: Q. Can this rim come off? A. Yes; that is exactly like this, a loose, component part ..

That is rusted and old. Q. J~st rust holding it on there now?

page 36 ~ A. ·Yes, sir.

By Mr. Sharove: Q. Did you notice this same equipment before it had

been taken down in the rear of the court-room 1 A. Yes, sir. . Q. Did you observe it and examine it? A. I looked at it; it had some air in it \Vhile it was setting

in there; but the lock rim \Vas not properly in place. Q. What ·do you mean when you say the lock rim was not

properly ·in ·place f A. That groove or channel in which the lock rim works is

damaged, and it -will not set in there due to the fact it is rusty and has been hammered on.

Q. ~f the lock rim was sprung \Vould that be a cause for it not fitting· in place?

A. Yes, sir. Q. What is the effect of putting pressure in there? A. Well, you first put in the back side rim and tire and tube

and then the other side rim and the tire has to be slipped in as you insert the lock rim; then to put in air, fasten the side rim in position, and it has a tendency to put the lock rim in place. ·

Q. State whether before the pressure is put in the tire the lock rim should be locked there, or whether the

page 37 }- pressure of air will put it in position Y A. Yes, if the lock rim is in good condition.

Q. vVith such a rim as this, with an appropriate tire, properly assembled, what is the possibility of their flying apart Y

A. It is not possible. · Q. If I should tell you t~!a.t such a rim, mounted on a

tire, flew apart, that is, the outer flange and the lock rim became separated from the tire and rim, what 'vould you say was the cause?

A. Irnproperly assembled or damaged parts. Q. If such equipment is likely to come apart would it

make any difference whether the equipment was setting up on the tread of the tire, or lying down?


A. It would not make any difference, if it were coming apart. .

Q. Assume that such a tire and rim were mounted and twenty pounds of air had been put into the tire and then the tire was brought around to a garage and turned over to sont.e one working at that garage to inflate it properly, would the position that tire was placed in make any difference if the thing were going· to fly apart~

A. po I understand you mean if it were setting up or lying down?

Q. Yes, would it make any difference whether it page 38 ~ · were standing or lying down?

A. No, sir. Q. 'Vhat would be a con1petent cause of a lock rim on such

equipment becoming bent or sprung~ A. The use, and it might come from hammer blows, or

running flat, injuring the side rim, or natural deterioration. Q. You say there is a possibility of springing the side

rim also by the same use 1 A. Yes, sir. Q. vV ould the fact that the lock rim or the flange was

sprung, even to a slight degree, be a competent cause of the side or flange becoming sprung by normal air pressure?

A. It is possible. Q. Is it possible for such equipment to be assembled and

yet either the flange or the lock rim to be sprung, or to be in such defective condition so that when the equipment is assembled and turned over to some one at a garage for inflation it would be impossible for that person by ordinary inspection to determine whether it was suitable for inflation T

By Mr. ~Jay: I object to that question~ By the Court : The question is a little in

page 39 ~ volved, but at the sarne time I think they are entitled to show whether it ·was apparent to a person

using it in the ordinary way. If you frame the question along -that line I will submit it.

By lVIr. Sharove: · Q. Is it possible for a flange or side rim such as this to be

sprung so that when the equipment has been assembled, and 18 or 20 pounds has been put in the tire, and the equipment has been turned over to some one at a garage for inflation, that the defective or dangerous condition of the equipment would not be perceptible to a person using it in the ordinary method?


.A. It might be defective and he not notice it upon casual inspection.

Q. Then, you would say that it is possible for the flange or side rim next to the locking· rim to be sprung, even to a slight degree, and then assembled and that same tire could be inflated by a general handy man at a garage 'vithout his detecting its defective condition?

A. Yes, sir. Q. Assume that such a tire and rim were assembled and

because of a defective or improper condition the equipment were to fly apart, 'vould it make any difference whether it was

applied to a wheel of a truck during· the time the page 40 ~ air pressure was applied?

A. It would not . . Q. Assume that such a tire and rim 'vere assembled and put on the wheel of the truck and the tire blew out in the process of inflation because too much air was put in it, state whether or not that would be apt to cause the side rim to fly offY

A. No, it would not. Q. Then, if" the locking rim and flange did blow it out what

would you attribute that to? A. Defective material or defective rim base. Q. Suppose you were handed a rim and tire such as this

with twenty pounds already in it an_!} asked to inflate it, would you have the right to assume from your knowledge and experience in this business they were in proper condition, free from danger Y

By Mr. May: I object to that, as this witness has not qualified as an expert on that.

By the Court: Objection sustained.

Q. 1\fr. Rappley, if a tire and rim such as the one in question were brought to you for inflation, already containing twenty pounds of air pressure, would your examination to determine the suitability for inflation be as thorough in such event as if the tire did not have any air in itY

· A. No, it would not. page 41 ~ Q. Will you explain your answer Y

A. I would naturally assume from the fact that it has twenty pounds of air in it that the necessary exami

.. nation would have been made to determine its suitability for inflation.

Q. If such a rim were going to fly apart because of the facts you have just stated, what amount of air pressure would be necessary to cause it to fly apart?


it. Any pressure. Q. .A.ssu1ne that this tire a.n~ rim were properly assembled

and locked, and appeared to be in proper condition, and twenty pounds of air 'vere put in it, but when more pressure 'vas applied the lock rim and side rim flew off, what would cause that¥

A. Either rust in that channel, or a defective channel, such as being pounded out of shape, or a defective look rim.

Q. Mr. Rappley, I am going to ask you to illustrate to the jury, by using the rim already introduced in evidence, what you mean by rust in the channel?

A.· It becomes rusted in the channel, as you see here quite · a bit of rust in that channel now; also out of line in there, and when that lock is placed in there it does not seat down p1·operly.

page 42 ~ By Mr. Sharove: If your Honor please, for the · purpose of illustration, we have brought a new

rim of this type in, not exactly the same size, being 5 x 20, instead of 5 x 24. It is a brand new rim; never has been used. I would like to illnstrate with that.

By the Court : Is there any objec.tion, Mr. May 7 By Mr. May: No.

Bv Mr. Sharove: ·Q. What would you say as to the defective condition of

that cquipn1ent? (referring to old rim.) · A. This is defective in that channel. Q. Will you examine the lock rimY A. That is not defective, except an excessive amount of

rust ·in it, that would not allow it to seat properly. Q. Look at this new rim.? A. That 'vill seat in there tig·htly. When that goes in there

in that position, with that side rim brought in there like that, lt has a tendency to hold it securely. When properly assembled it cannot come out. The pressure against it here holds it in position. ·

CROSS EXAMINATION.

By Mr. May: Q. Mr. Rappley, I understand you are the local head of a

rim companyY · page 43 ~ A. That is right, the Dixie Wheel Company.

Q. Yon make such rims as that T A. We don't make them; 've represent the manufacturers

of them; we repair them.


Q. Just what has been your connection with that Company 1 A. I worked for l{elly-Hayes for about 14 years. Over 8

years, I was service manager, traveling all over the United States, demonstrating this type of equipment and selling it.

Q. So, you were in the sales' end' A. ·Yes, service sales. Q. ~re you a mechanic by trade? .A. Yes, sir. Q. Of what University are you a mecha~ical graduate? A. None. Q. 'Vhat has been your experience in mechanics 1 A. Shop experience. ~ Q. Where have you been einployed in shop work? .1\. With the J{elly-Ifayes people. Q. "\Vere you doing that before you started out as travel

ing rrtanag0r for them 1 A. Yes, sir. Q. V\-:-hat would be some of your duties when you were in

this operating end, working in the shop-,vhat ~ page 44 ~ would you do when in there~

A. Running the machines, manufacturing side rims and such things as that. I worked in several different departments.

Q. Did that cover instructing· other people as to the precautions in servicing the installation of rims and such matt~rsT

A. It did not; but in my service it did, any complaint that ·would come up from any manufacturer or dealer regarding defective material and improper installations, &c.

Q. When there is air in the tire, that is, the normal amount of air, what are the causes that might cause that locking rim to fly off; that is, assuming the tire is normally full of air,-in this case it contained 80 pounds, I believe? .

A. Defective channel, or defective side rim or defective -lock rhn.

Q. "\\7Jlen there is no air in it, deflated, what are some of the con1mon causes that would have it go off then?

A. It 'vould not p:o off except you had a flat tire on the road and vou continued to run with that tire. There would

· be a tendencv for the side rim or the lock rim to page 45 ~ come out of p]ace and con1e off and become dam

aged. Cj. As soon as the side rim is released by the air pressure

being reduced and releasing it, either or both of those rims nury come off by the application of a jarring force?

A. That h~ right. Q. And, there is much more likelihood of their corning off

• C. D. Kenny Co. v. vVilliam James Dennis. 41

when there is a small amount of air in the tire than when there is any considerable amount of air in the tire?

.A. \Vell, I would say that depends on the condition of the equipment.

Q. In putting air in the tire, stretching the rings to where they would be normal, is it possible for the application of air to push that lock rim off?

A. If there is a defective channel there it would be impos-sible to properly seat that lock rim in there.

Q. Or, if there has been an accumulation of rust? A. Yes, sir. Q. Or, if there is a defective lock rim there 1 A. Yes, sir. Q. Is there any definite amount of rust that one may say

would throw· that lock rim off the first time there was ap-plication of air~ ·

A. Please state that question again. Q. Does there have to be any definite amount

page 46 ~ of rust in the channel, or on the rim, to cause it. to fit perfectly?

A. I could not say any definite amount of it. It might rust all the way around, or just one place, as in this case.

Q. After it is put in, if the lock rim has gotten in place, does that necessarily mean it has been forced by the rust you speak of?

A. No, it will become 'vorn and distorted, as you see in that channel there.

Q. Then, either a little or a good deal of rust would cause that lock rin1 to fly off~

A. It 'vould take a certain amount. Just a little would not cause it to fly off. Accumulation of rust for years would cause it, as in this case.

Q. This tire there, ·what 'vas the defect in that? -~· It was, evidently, that the lock rim was not properly

seated in the channel. Q. If the tire at that time only contained twenty pounds

of air 'vould that alter your opinion on that 1 A. No, sir. Q. If it was full of air the pressure would necessarily

take up t.he spare you refer to? A. No, I don't think he properly seated the lock rim on

there. page 47 ~ Q. This thing of satisfactorily doing things,

or 'vhether it will do something perfectly, you understand that to he a relative term, don't you? .

A. Yes, sir. Q. And, a thing that may be satisfactory to some one else


in your line, you would not necessarily consider that satisfactory to you 1

A. That is quite right Q. This lock rim which we are talking about, what is the

construction of that-it has been referred to as spring steel, is that right?

A. Yes, spring steel. Q. What do ·you mean by that, in the terms of the lay

man? ~t\.. The difference is the rim base is made out of the steel,

not made of spring steel, so they will retain their shape. Q. When we speak of this as being sprung, that could very

well mean they are sprung to a certain extent, these ends are not in position?

A. Yes, not in contact. Q. Because they are sprung does not necessarily mean

that they are defective, does it Y A. Yes, sir. Q. Vvell, I take it, if the points are not in their position,

as· you say, and they are sprung, that you would page 48 ~ call this one-which is put out by your plant, is

it not (referring to new rim)? A. Yes, sir. Q. This has not been used yet, has it? A. No, sir. Q. You would consider, these ends not being in position,

that they are defective? A. No, sir, because they are a perfect circle. w;hen they

are put together the hvo ends come together. Q. '11hose ends don't come together, do they? A. No, but you can bring those ends together. Q. I don't mean that this springs as much as yours-

-there is less spring in this than that? A. Let me demonstrate. These come together. That rim

over there has been sprung. Q. If you could get those together they would be all right? A. Yes, if you would get that rust out of that channel.

RE-DIRECT EXAMINATION

Bv Mr. Sharove: ··Q. Mr. R.appley, when one of those rims are sprung it is

sort of difficult to get it back in line, is it not Y A. Yes, sir. Q. And, even if it were gotten back in line if there were

rnst in the channel what would be the result Y


A. It would not seat properly until that rust page 49 } was gotten out of the channeL


DR. T. H. MAYFIELD, a witness introduced on behalf of the plaintiff, being first duly sworn, testified as follows:

DIRECT EXAMINATION.

By Mr. Sharove: . Q. vVhat is your name? A. T. H. Mayfield. Q. What is your profession? A. I am a physician. Q. Of what college are you a graduate Y A. Medical College of Virginia. Q. With what institution or with whom are you connected Y A. Memorial Hospital. · Q. With whom are yon connected? A. Dr. C. C. Coleman. Q. Did you attend James Dennis, the plaintiff in this caseY A. Yes, sir. . Q. ''Then did yon first see him 7

A. May 39, 1933. page 50 ~ Q. Wher«? did yon see him 7

A. St. Phillip's Hospital. Q. Was this an emergency-case? .r\... Yes, sir. Q. vVhat did your examination at that time revealf A. The boy had a right bad blow in his face; had lacera

tion of his upper lip and lower lip, and had a fracture of his lower jaw bone, teeth loosened, and a right badly comminuted fracture of his upper jaw bone, which extended into the cheek bone. There was a little depression in that. The boy had lost a good deal of blood, but was in fairly good condition.

Q. "\Vas it necessary to g·ive the patient a general anesthe-tic to repair the lacerations Y ·

A. Yes, sir. Q. Will you describe your treatment? A. As soon as he came in we took him into the operating

roo1n. He had a laceration extending into the roof of the mouth, the hard palate fractured; had to couple that up; repair the lacerations; take out the loose bone and put him back to bed. ·


Q. Doctor, did you send me a medical report after examining the patient?

A. I sent you a report at some time. I have page 51 ~ forgotten the elate.

Q. Have you a copy of that with you Y ..A. Yes, sir. Q. Doctor, you can refresh your memory fron1 that re

port. I wish you would state the number of different injuries that you found the plaintiff suffering from at the time you examined him T

A. He had fracture of his lower jaw and laceration of both lower and upper lips, laceration of his mouth, fracture of his upper jaw bone, extending into the cheek bone, not so much displacement of the cheek bone, but we did have to repair the laceration to the roof of his mouth and his lips. Th~re were a number of teeth loosened, 'vhich were so much displaced that they had to be removed.

Q. Were both jaw bones_ broken? A. ·Yes, both upper and lower ja,vs; in addition to that the

man had a s·eparation of one of the suture lines in his skull, which would be equivalent to a fracture; but that did not cause him any trouble, apparently.

Q. How long did the patient stay in the hospital at this time¥

A. I think he left the 30th of May. Q. That is hventy-eight days?

page 52 r A. From the 3rd to the 30th. Q. Who else attended the patient beside your~

self? A. He was treated bv Dr. Wash and Dr. Coleman. Q. Did the patient have to return to the hosp'ital for fur-

ther treatment? .A. He came back on July 21st. Q. How long did he stay then? A. Stayed until July 28th. Q. What did your examination at that time reveal f A. He still had a bunch of teeth to be removed and osteo-

mylitis of his jaw. Q. Explain the term osteomylitis? A. Osteomylitis is an infection of the bone. Q. Did this necessitate removing a portion of the jaw

bone1 .A. Only some fragments of the jaw bone had to be removed.

He had some teeth to be removed. I did not direct the treatment of him on his last admission to the hospital, but sa'v him every day.

Q. When did you last see the patient?


A. I saw him Tuesday of thi's week. Q. Will you state whether or not he is suffering a perma

nent injury? A. Yes, he will have a permanent injury.

Q. What is this permanent injury~ page 53 ~ A. It is a permanent deficiency of his mouth

. and lips. He has lost a bunch of teeth and his lips are a little deformed by scar contractions and lacerations of his face.

Q. Doctor, in your opinion, could a blow from a steel rim or ring flying off the rim of a tire and hitting James Dennis in and about the face cause the injuries you have just de-scribed? ·

A. I suppose it could. . Q. Did you present a bill for your services¥ A. I presented the bill in behalf of Dr. Coleman. Q. Do you remember the amount of that bill? A. $75.


page 54 } CHARLES W .. A.RMISTEAD, another witness introduced on behalf of the plain

tiff, being first duly s'vorn, testified as follows:

DIRECT EXAJ\iiNATION.

Bv l\{r. Sharove: "Q. What is your ~arne a.nd residence, A. C. W. Armistead, 612 North 32nd Street. Q. What is your occupation? A. I work for the City Gas "\Vorks. Q. Were you at the Old l\{arket Garage on May 3, 1933? A. I don't know. Q. Were you at the Old Market Garage when James Den

nis, a colored man en1ployed there, was injured? A. I was. Q. Will you tell the jury just what happened, ·so far as

vou know1 · · A. I was inside of the house and I heard a noise that sounded like a tire blowed out. I "Tent on about what I was doing. What I was doing I don't remember exactly. After I had finislied up, iri a second or two I went outside. I, like anybody else, have a lot of curiosity. He was lying on the sidewalk. He looked like he was drowning in his own blood


and I told the people to get aside and I picked page 55 } him up.

Q. ·\V'hat did you do when you picked him up? .A. Held his feet up and his head down until the ·blood

ran out of his mouth. Q. Did you help to take him to the hospital' A. I helped put him in the car that carried him to the hos

pital.


N ote.-It is conceded by the defendant that this man was injured from some experience. with the tire.

page 56 ~ C. W. ARMISTEAD, another witness introduced on behalf of the plain

tiff, being first duly sworn, testified as follows: ·

DIRECT EXAMINATION.

By Mr. Sharove : Q. Please state your name Y A. C. W. Armistead.

· Q. What is your occupation? A. With the Old Market Garage: Q. Were you at the Old ~farket Garage on May 3, 1933,

when the plaintiff was injured 1 A. Yes, sir. Q. Will_ you describe from your own knowledge what you

know about the matter? A. I was standing inside the door at the time this tire

blew to pieces. I heard a loud noise and run out and saw James Dennis laying down, badly injured. I did not think at the time to set him up, but my father picked him up and let the blood run out of his mouth, of which there was a good deal. I looked in his month and his whole palate had been pulled loose, and I run my finger in his mouth to get some

:.:teeth out, for fear he would swallow them. We called the ambulance. The ambulance did not come in time, but was met

on the way coming. Mr. Allen and my father and page 57 } someone else put him in the automobile and we

carried him to the hospital. Q. Did you see the equipment afte·r the accident that

caused the injury! A. Yes, I picked the tire and rim up after the accident. Q. Will you explain the condition of the equipment? A. The second or third day after the accident I took this


tire, with my father, and reassembled it, with anot~er tube. When the rim came loose it permitted the tube to burst. The tube pressure broke it. It did not hav:e. anything to hold it. I had an old tube and assembled it with all the precaution in the world, my father standing on the rim. I was putting air in the tire with all the precaution in the world and finally the band came loose. I ordered a fallow rim, or lock rim, from the Dixie \Vheel Company. In the excitement of the thing nobody had the heart to fool with it a whole lot. C. D. Kenny sent for that tire, consequently we did not have an opportunity to put it to a test prior to the time C. D. Kenny sent for it. I sent along the r~ and straightened it to some extent. The boy in taking off the ring had pounded the rim . down.

page 58} CROSS EXAMINATION.

By Mr. May: Q. ,Did you work there at the Old Market Garage, your-

self? A. I am connected with the Old Market Garage. Q. vVhat has been your capacity with them? A. I 'vorked on the front at the time this happened. Q. Are you in the business of repairing or inflating tires

for people? A. Yes, we .fix flats there, occasionally. Q. How long· had James Dennis been working for you? A. I don't remember. Q. Can you say whether one year or five years Y A. Frankly, I could not tell you the time he worked for

us. Q. Was that his regular duty working out there? A. James Dennis was working on the front in a general

way; handy man for the garage. Q. Was he doing what he was supposed to do at the time

he inflated the tire~ It was an accommodation to C. D. I{enny? . A. I will say to some extent it was partly his job to assist this man in inflating the tire.

Q. That was what you had him out there for? A. I had him there for general work.

Q. The C. D. Kenny Company :was somewhat page 59 } of a customer of yours?

A. Yes, sir. · Q. If anything was done in consequence of which a bill

48 Supreme Court of Appeals of Virgima.

was incurred on that tire you would have sent the bill and it . ·would have been paid by Mr. J\!Iartin Y

lt. No, not on that tire, because a bill could not be presented on that accommodation. .

Q. He has paid whatever bills that have been presented to hlm? _

A. Yes, but not on that kind of job. Q. That is a service you render a customer who applies

for it? A. Yes, sir. Q. You take that into account in formulating your budget,

I presume? . A. What do you mean?

Q. In order to maintain your customers do you have air there?

A. Yes, free air, available to anyone. Q. Some,vha.t of a necessary appendage of a garage? A. Yes, air is free to anyone, and fifty per cent. of the

people inflate their own tires. Q. By having that service it brings you customers? A. Yes, sir.

Q·. From those customers you endeavor to make page 60 ~ enough to make up for this service you render free Y

A. No, sir. Q. Are you familiar with the mounting of such tires as that

and the inflation of such tires as that? A. Yes, sir. Q. What side of that does a person work on when inflating

the tire? . A. The side that is mounted last, so that you may see what

position that rim is in, so as to see how the rims are seating themselves.

Q. Can you get any vie'v of it from the other side? A. No, sir. Q. Do you know what position tl1e plaintiff was in at the

time? A. No, I did not see him. Q. Suppose he was kneeling down, could he have seen it? A. If he was back of the tire he could not see it. Q. Do you agree that if there is rust on the channel or

lock rim the application of air would cause the lock rim to fly out?

A. Yes, sir. Q. You still say you should stay to the side in mounting

the tire? . · . A. Yes, by properly inflating that tire you can watch that


rim to see how it is coming. That is the point I page 61 ~ tried to illustrate by my father standing on top

of the rin1 and was watching to see where it would g~ .

Q. If the party stays on that side of the tire he is supposed , to look to see ho'v that rim is catching?

A. Yes, but with a defective piece of material you cannot see what is inside. That happens so quickly you cannot see what is happening until it is all over. You cannot see the inside; you can only see whether the outside is seating properly.

Q. You can see somewhat of the inside? A. No ; if the edges are 'vorn off from deterioration you

cannot see. This tire rim brought to us was already worn. Q. Will not a defective condition necessarily prevent the

rim going down? A. Not in your vision, it will not. Q. If there is a defective condition on the inside that causes

this, it would be impossible on the outside watching to tell if it was likely to fly from the inside~

A. If it was defective inside you cannot see what is happening inside; you can only ''ra.tch the rim outside.

Q. If you cannot tell from the surface on the outside why cannot the party stay on the opposite side?

A. You can watch on the_ inside and gradually page 62 ~ inflate it and see what is happe~ing.

RE-DIRECT EXAl\fiNATION.

Bv 1\tfr. Sharove: ·Q. 1\tfr. Armistead, will you state 'vhether or not such equip

Jnent as this could be assembled and yet from your inspection of it it would semn to be proper for inflation and, yet, because of son1e defect it would fly apart~

A. If you g·ot the air in the tire and the band up against the lock rin1 it 'vould stay in place if all right; if it was not all right it "roulcl not stay in place, because nothing there to hold it. :

Q. Did you perform any work on this 'rim after the acci-dent? ·

A. Yes, I straightened it out with a cold chisel, the groove in the rim.

Q. Did you order any new part for it? A. I ordered a new fallow band from the Dixie Wheel Com

pany, but before T got a chance to replace the one that was so bad the tire and rin1 'vere taken back by the C. D.- Kenny Co. · · ,


SO Supreme <Jourt of Appeals of Virginia.

page 63 t 'VILLIAM JAMES DENNIS, the plaintiff, being first duly sworn, testified as

follows:

DIRECT EXAMINATION.

By Mr. Sharove: Q. What is your name and your residence? A. William James Dennis. Q. Where do you live? A. 1315 North 30th Street, Richmond, V a. Q. Where were you employed on 1\Iay 3, 1933 Y A. Old Market Garage. Q. Are you the plaintiff in this case f J.l. 1res, sir. ~ Q. Are you a married man, supporting a family? J.l. 1r es, sir. Q. Please state what happened to you on May 3,1933, when

you were injured Y A. I was working at Old Market Garage. I was standing

talking to a boy and his wife and James Lewis rolled a tire to the Old Market Garage and he asked me to put air in the tire. I went in the office to get the gauge and came back where he was. He was standing by the tire. I stooped down

. to put the gauge on the tire and James handed me page 64 t the air hose and told me to put eighty pounds of

air in the tire. I put the hose on the tire to put some more air in the tire and the next thing I knew was about haJf past 6 in the morning.

Q. Had you ever put air in the same kind of tire before Y J.l. 1r es, sir, I put air in that tire before. Q. Did you inspect that tire before you put air in it f A. I looked at it; it seemed to be all right. Q. What do you mean by all right Y A. I~ looked like to me it fitted· up all right, nothing wrong

about it. · Q. It looked like. it was properly locked? A. 1r es, looked like it always be ; seemed to be lockea. Q. Did you know that rim and tire you were asked to in

flate had been run on a flat·? A. No, sir. Q. Did you know it had been taken apart and a flat fixed

on itT · A. No, sir, when he rolled it around I thought it was .a

spare tire. I thought he had taken the spare tire and rolled it around to put some air in it. On some occasions you put


a spare tire down and it goes down the same as if a nail in it.

Q. Can you state the amount of air in the tire when the ring blew off?

A. Not exactly, around 25 or 30 pounds, I guess. page 65 } Q·. Do you know ,James Lewis Y

A. I know of him by his coming around there to get gas and oil and water, &c.

Q. When you regained consciousness how, did you feel? A. Sore. · Q. How long were you in the hospital Y A. Twenty-eight days the :first time; then I went home

and I had to go back to the hospital every other, day to see the doctor, and after I went up there every other day and I kept on paining with my jaw, I told him some· teeth were still loose and I could not eat anything to amount to anything, he told me I would have to come back to the hospital and get the teeth fixed. I went back and stayed at the hospital, I think, seven more days.

Q. Did you get a bill from the hospital? A. Yes, sir. Q. Do you recall the amount of this bill 7 A. One bill I got from the hospital, I think was $153. Q. $157.50? A. Yes, sir. Q. For hospital service, room and board for twenty-seven

days? · A. Yes, sir.

Q. Have you endeavored to replace your teeth? page 66 } A. Yes, sir.

Q~ Have you had them replaced? A. No, sir. · Q. How much would it cost to have· them replaced? A. The doctor· told me it would cost between $100 and $150

to replace them. Q. What doctor told you that? A. The same doctor that sent me the bill. Q. Dr. WashY A. Yes, sir, Dr. Wash. Q. Are you now able to eat solid food t A. No, sir. Q. Does your face ever pain you Y A. Yes, sir. Q. Does it pain you now? A. Yes, sir. Q. When does your face pain you Y A. Any time it gets rainy or cloudy.


Q. Has your power of speech been affected? A. Yes, sir, sometimes people have to ask me over three

or four_ times what I say. They used to understand what I said. ·

Q. What was your salary at the Old ~Iarket Garage at the time yon were injured?

A. They were paying me $12 a week and, with page 67} what I picked up, I averaged altogether around

$18 or $20 a week. · Q. How do you explain the difference between the average

and the other Y A. You see, they gave me $12 a week for waiting in the

front, keeping the front clean and the garage, having the stored cars in place. Some trucks go out early in the morning and I would have to pt1t them near the front, so they can get out first. Those that go out late I had to put them in the back part, so there would be no trouble in the morning for th~ trucks and cars to get out. The other part came in for washing and greasing cars.

Q. How much time did you lose from your usual employment by reason of these injuries f

A. Exactly four months.

By Mr. May: If your I-Ionor please, at this time there is matter which I would like to take up with the Court, which would probably be more proper to be taken up in the absence of the jury. .

By the Court: Gentlemen of the jury, you will please retire.

page 68 ~ Jury out.

By Mr. May: Counsel advise that this is their last. witness and at this stage the defendant desires to move the Court to strike aU of the evidence introduced on behalf of the plaintiff, on the ground that there has been introduced no evidence from which the inference of negligence on the part of the defendant could be assumed or taken.

By the Court: The motion is overruled.

By Mr. May: I recall the plaintiff:

CROSS EXAMINATION.

By ~{r. May: Q. ,James, how long had you been working at the Old

Market Garage when this thing happened'


A. As near as I could get at it, sixteen or eighteen months. Q. What were your duties there? A. ~Iy duties were washing and greasing cars and waiting

on the front, gasoline and oil cars, wiping the windshields and putting 'vater in the cars.

Q. Engaged in putting air in the tires? A. Yes, sir, checked their tires and put air in

page 69 ~ them. Q. When you went there did anyone ever tell

you how tires should be handled ·when you inflate a tire 7 A. No, sir, not particularly. How to infl&te a tire when

you inflate a tire off the ,vheel nobody ever said; but when you inflate a tire no other way to inflate it than the way· I inflate it when it was on the wheel.

Q. Why could you not inflate it any other way? A. How are you going to do it, take the truck and turn it

over and inflate it 7 . Q. Suppose it was off the wheel, this one was off the wheel,

was it not? A.. Yes, sir, he rolled the tire up there. He was standing

there holding the tire and handed me the air hose. When he handed n1e the air hose and told me to put eighty pounds of air in the tire, ·I put the air hose on the valve stem and that was the last I remember.

Q. Why could you not put air in there any other way? A. You could have put air in there some other 'vay. Q. What other 'vay could you have put it in there? A. I don't see no 'vay except you couid lay it down and

put one side up and put it in. Q. Did the boss man ever tell you to stay away from the

rim side of them? A. No, sir, 'vhen you put the air in there you have to keep

looldng and probably got to tap the rim and see page 70 ~ when it is sprung.

Q. You had the tire in front of you~· A. Yes, sir. Q .. How did the air seem to be going on 7 A. It seemed to be going on all right. It did not take no

time to put it on 'vhen I did, no more than a second. Q. Did you look at it in that second T A. No, I did not have time. If I could have seen it prob-

ably I could have got out the way of it. Q. Did you look-at it in that second 1 A. No, I was looking at the rim all the time. Q. You 1vere looking at it at the time 7 A. ·Yes, sir, T was engaged in looking at it at the Jime.

'Vhencver I g·o to pnt air in a rim, I watch it all the time.


Q. Did you look at that tire before you started to put air in it?

A. Yes, sir. Q. Did you look at that rim 1 A. Yes, sir. Q. How did that rim look to you, both the side rim and

lock rim 1 A. Looked all right. Q. Did they seem to be in place?

A. Yes, sir. page 71 ~ Q. If there ·was any rust that stuck in there a

quarter of an inch it would have pushed the lock rim out, would it not?

A. No, sir; not all the time ; if not a whole lot behind. it, it would go half way down any way. Sometimes you might put air in it. Every time you change tires on them you are supposed to take a screw-driver and scrape the rust from the rim. It saves the tire and the rim and you too. When I change them, myself, I have a 'vire brush that I go all the way around and scrape the rust out of it.

Q. Did you know if that lock rim, for instance, had rust on it, or the gToove, that it went on had rust on it, that that rim was liable to come out there at you?

A. I don't understand you. Q. Did you know that if that rim that lock rim went on

had rust on it, it was liable to come out at you from the in-. side?

A. Yes, sir. Q. You knew that? A. Yes, sure. Q. Knowing that, you got on that side where you knew

you were liable to get hurt, did you not? A. In the same time I was on that side of the tire I had to

stand on that side of the tire to see if the rim was page 72 ~ going on even. If lying on the ground it could

not have come off if holding it down, but as I raised it it would have come off and hit me in the face like it did.

Q. You knew if there was some rust on the groove when you put the air on it, it would fly off and hit you?

A. It is natural the rust should not be on there. If you clean it out each time you change the tire it would not be on there.

Q. You knew if that rim was a little bit rusty it would come out and hit you, did you not?

A. I never saw one come out and do it, and I never heard


of one coming out and doing it, but I always play safe and clean it out.

Q. You knew it was liable to come open any time and fly off-you knew it was liable to happen any time?

A. Yes, sir, but if you clean it out good it won't happen. Q. How many times di.d you test that tire to see how it

was coming on i A. Once. Q. Never tested it any more 7 A. No, sir. Q. How many pounds of air were in there when it went .

off? A. I could not tell you exactly how many in

page 73 ~ there. When I tested it there was between eighteen and twenty pounds in it. I put the air hose on

there and held it about a second, I should say, when it blew off. Evidently it could not have got enough air in at that time to blow off. A pump could not pump that much air in a second to blow a tire up.

Q. Did you have an automatic gauge on that tire, or what kind of gauge were you applying to it?

A. What do you mean? Q. How could you tell how i:nuch air was in it? A. We had a hand gauge. Most of them have a gauge

uow on an air hose to set for how much air you want to go in.

Q. This· gauge you actually had on there at the time could only be put on there when you took the air hose offY

A. Yes, sir. Q. Ifo\v could you tell between times just how much air

you had in that tire. At any special time how could you tell ho\v much air was in the tire?

A. T;hat is what you put the gauge on there for. Q. You put the gauge on there and find you have twenty

pounds on there? A. I put the gauge on and found between eighteen and

twenty pounds in there. Before any air could go in there to hurt the rim come off and that is the last I re

page 7 4 ~ member until the next morning. Q·. How do you tell when you have fifty pounds

in that tire? How would you do it' I say I don't want over fifty pounds of air in a tire, how could you tell when you had fifty pounds in there?

A. You say, James, I want fifty pounds in there. I put the guage on to find out how much air in there. You put the gauge on there a second or so and then take it off and and

56 Supreme Court of Appeals of Virgirua~

put air in it and then try again. If you handle a gauge much you can tell pretty well.

Q. You can't take a gauge and tell how much air you have in there unless you take the air hose off?

A. That is right. - Q. You can put a 'vhole lot of air in a tire in a minute, can't you? ·

A. Not unless you have a mighty big pump. There are different sizes of pumps. You have to work up the air, itself. Sometimes it takes you fifteen or twenty minutes to put air in a tire if the pumps gets weak.

Q. How long does it take to pump up a tire 1 A. Depends on how much used. You sometimes lose air.

If a tire loses air the tire 'viii be low. If it has not lost none it don't ·take very long to put air in there.

{The witness stood aside.)

page 75 ~ By Counsel for Plaintiff: If your Honor please, we rest our case.

EviDENCE FOR DEFENDANT.

C. V. MARTIN, a witness introduced on behalf of the defendant, being first duly sworn, testified as follows:

DIRECT EXAl\iiNATION.

By Mr. May: Q. Please state your full name and residence?

· A. C. V. Martin, 1407 Sauer A venue, Richmond, Va. Q. What is your occupation, 1\fr. 1\fartin? A. Manager C. D. Kenny Company, 17th and :1\'Iain. Q. I believe James Lewis was working for the C. D: Kenny

Company' at the time this accident took place 7 A. Yes, sir. Q. Do you remember how long he had been working for you

up until that time, or when he came there? A. I had him from, I think, October, 1932, to the 2nd of

September, 1933. · Q. What were his duties?

page 76 ~ A. He was porter and extra driver. Q. Was he in any sense a mechanic or anything

of that kind? A. No, I never looked on him as a mechanic; just a driver.

We always have them to change their tires when they have a puncture, or anything like that. They change their tires, but I do not look on them as regular mechanics.


Q. Does he have other duties about the truck than the change of tires Y . A. Nothing other than putting oil in and having gas put· 1n. .

Q. Do you recall when this accident occurred? A. It was May 3rd, 1933. It has been testified here he

told me he had a flat tire and I told him to fix it, so he worked on it and carried it around to the garage to have air put in it. He came back and told me of the accident. I went around to see about it and they had already taken the man to the hospital.

Q. Did you see the rim and tire before it was taken off to put air in it?

A. No, he told me he had fixed the tire and was going to take it to the garage to have air put in it.

page 77 ~ Q. After that what .did you do with the tire and · rimY

A. 'rhey told me at the garage they could not fix it, or did not want to fix it, but I called up Mr. Huntington, who used to be with the White Company and asked him could he fix it. l-Ie said yes, so I called him up and had him fix the rim and put a tube in it.

Q. What did he bill you for fixing itf ..A. I think seventy-five cents was the bill I got from Mr.

Huntington. Q. What was that for Y A. That was for putting· the rim back and putting· a new

tube in it. I furnished the tube. He just put it in; put t~e equipment back in shape.

Q. Before the equipment was sent to Huntington to be fixed, or the tire to be mounted, or whatever was to be done, did you see the tire and rim, yourself, personally?

A. I saw the tire and rim, yes. The lock rim was out of shape. It had been warped or bent some way, or the other, and h~ said he had no trouble putting it back. We have been running it and using it ever since.

Q. Did yon notice any particular accumulation of rust on the tire or rim, or did you look for it? . A. I never looked for it.

Q. After the tire came back from Mr. I-Iuntingpage 78 ~ ton, what did you do with it then?

A. It was put on as a spare tire; then we had· use for it and we put it on t.he truck and used it.

Q. It is now put on one of the wheels of the truck used in your business and bt'ing u.sed on there no,v?

. A. Yes, sir.


CROSS EXAMINATION.

By Mr. Dervishian: Q. Mr. ~iartin, you say ,James Dennis was working for

you on May 3, 1933,-did he have a chauffeur's license? A. Yes; they would not allow him to drive without a chauf-

feur's license. Q. I-Ie did drive in addition to the other duties Y A. Yes, he was extra driver and porter. Q. When this tire was sent up to 1\ir. Huntington to be

reassembled was Mr. Huntington or anyone in his place told that tire had blown off and injured some other man?

A. No, I never told him. I just asked him to .fix it. I said the lock rim was bent and ·wanted to know if he could fix it. He said yes and I sent it up there.

Q. You don't know whether Mr. Huntington did anything else to that rim; that is, whether he repaired it or not?

A. No, I could not say.


page 79 ~ A. F. HUNTINGTON, another witness introduced on behalf of the de

fendant, being first duly sworn, testified as follows:

DIRECT EXAJ\1:INATION.

By Mr. May: Q. Please state your full name and occupation? A. A. F. Huntington, mechanic. . · Q. How long have you been engaged in that business? A: I have been in this business about twenty-four years. Q. Do you recall a tire which was sent to you shortly after

May 3, 1933, last year, and it was reported to you some time later that that was the tire which had been involved in an injury? ·

A. Yes, sir. Q. Did that tire and rim and tube go through your hands

when it came in? A. When it came in I issued a work order to mount that

tire and rim. · Q. Did you g·o out there to see what it needed at that timeT A. Only in the usual manner, when the job came in, to note

that it did need some repair and detail a man to page 80 ~ 1nake that repair. .

Q. What repair did it appear to yon that it ne.ededY


A. Only to determine that the tube might have new mounting and to mount the tire on the rim.

Q. What was the condition of the equipment as it appeared to you, especially with reference to the rims?

A. I don't understand exactly what you mean. Q. What was the condition of the rims, the main rim and

the side rim and the lock rim, I believe, and the tire rim, I believe they call it?

A. You mean in serviceable condition Y Q. Yes? A. Apparently all right. Q. Have you been engaged on any specific trucks in your

occupation as a mechanic T A. Yes, I worked for the White True~ Company for five

years as service Superintendent. Q. Was this a tire that came to you from a White truck? A. It was off a White truck, yes. Q. It has been testified here that a considerable accumu

lation of rust might' cause the air to blow these rims out. Did you notice any undue accumulation of rust on the rims when they came to you f

A. Not any more so than any rim would have when they have been in use some time. Any rim that has been in use

. for some time would have an accumulation of rust page 81 } and dust.

Q. How long does a rim of that kind serve? A. Until it is ·worn out, the life of the truck. Q. How long have some of them been used Y A. Some I know of have been in use for at least fourteen

years, and are still in use in Richmond. Q. Do you know the approximate age of these rims Y A. I would say that i~:; at least six years old, according to

its number. · Q. This one in. question here? A. Yes, sir. Q. The man who fixed that for you, I believe, was Benny

Rooker! A. Yes, sir. Q. Do you know where he is now? A. No; the last time I heard of him he was employed by

the Alsop MotQr Company. Q'. You don't know where he is now? A. No, sir. Q. Did he report to you any unusual trouble in fixing that

tire, or did it go· through in the usual course of business! A. It went through in the usual course of" business and


the amount of time consumed 'vas twenty or twenpage 82 ~ ty-:fi.ve minutes; so he could not have had any un-

usual trouble in mounting it. Q. That is a part of the business you are in? A. Yes, sir. · Q. What is the proper way to mount or inflate a tire of

this kind, particularly with reference to the direction in which the l9ck rim and tire rim on that side should be pointed?

A. Always stand away from the movable rim, either to one side or back of it if possible. If the tire is off the wheel have the tire set so it cannot do any damage. The tire, itself, can do damage without the lock rim on it.

Q. Why do you say you should be to the back or one side of the rim?

A. There is always a chance of a movable side rim coming off, unless it is one piece.

Q. Is that principle known to all people who are used to mounting tires f

A. The tire people have campaigns to teach it to people in the business; they preach it continually, and take every means to inform the employees of the hazards in connection

with it. Those campaigns are held continually. page 83 ~ Q. It has been stated here if you are on the op-

posite side of the tire you cannot see what progress the lock rim is making as to its inflation. What do you have to say with reference to that?

A. The proper way to mount that rim is to place the case on the rim, the side rim on the rim, inflate it with enough air to seat the lock him in the groove, then inflate the tire enough to bring it up to the pressure it requires, enough pressure to seat the lock rim against the side rim. ·

CROSS EXA~1INATION.

By Mr. Dervishian: Q. Mr. Huntington, you say you have been engage_d in the

mechanical line for the last twenty-four years? A. Yes, sir. Q. In 'vhat capacity f A. I started as an apprentice many years ago, until I got

to the top, until I was foreman, and for the last few years I have been in business for myself.

Q. Did you attend any college in which you obtained your knowledge of mechanics?

A. I don't think there is any college for this particular


branch, except the college of hard knocks, only expage 84 ~ perience.

Q. 1\{r. IIuntington, do you know whether any work had been done on that rim before you got it, or whether any rust had been taken off¥

A. No, Mr. Martin called me, personally, and asked me if I did that class of work. I told him I did; so he sent it to me by one of his drivers, and I made out a work order to have it mounted and we charged 75 cents for mounting the tire.

Q. Do you know Mr. C. A. Rappley? A. Yes, I know him very well. Q. Would you classify him as an expert 1n this line of

-business~ 1\.. I think, probably, he is the expert on rims. Q. :.M:r. Huntington, suppose the tire and rim were mounted

on the wheel of the truck, how 'vould you inflate the tire Y A. I would use the same precaution as I have described,

1nounting the side rim and lock rim-Q. (Interposing.) I did not ask that. I said suppose the

tire and rim were ·already on the ,vheel, how 'vould you in-flate it? ·

A. Always on the inside, or rather the opposite side from the lock rim; check it the same way.

Q·. You mean you would get behind the tire and page 85 ~ inflate it ?

A. Yes, any number of operations you have to do to it from the inside of the wheel. I will say, frankly, I take more chances than anyone else, and probably I would not be careful to follow that method, but that is the proper way to inflate a tire; but not one time in a thousand it would be done.

Q. Do you rmnember one day last week, 1\{r. Sharove, Mr. Armistead and I came l)y your place of business and talked with you?

A. Yes, very 'veil. Q. Don't you remember you told us if the tire and rim

were mounted on the 'vheel of the truck it would be necessary 'vhen you wanted to inflate the tire to stand in front of it?

A. i told yon, I think as I did awhile ago. Probably I would do it that w·ay, but that is not the proper way.

Q. You deny that you said that, then? A. That was in the nature of a conversation, you will re

call. Q. You state that you "rere not notified as to the fact that

this tire and the riin had blown apart and had injured a 1nan hefore it 'vas sent .up ·to you?


A. I have never been notified. One of lvir. Martin's drivers told me that four days or so later ..

page 86 ~ Q. Was it not a standing· joke among many people that you had, without any knowledge, as

sembled a piece of equipment that had nearly killed another man?

A. I would not call it a standing joke. Q. Did you not tell us that¥ A. No. Q. Did you not tell us at that time that you had not seen

the rim and tire when it came into yo:ur shop? A. I said that awhile ago. I issued the usual work order

to have it reassembled. I did not examine it. Q. You did not see it? A. No, I did not say that. I told you that I did not ex-.

amine it.


.vage 87 ~ WILLI.Al\1: B. EUBANK, another witness introduced ori. behalf of the de

fendant, being first duly sworn, testified as follows :

DIR.ECT EXAMINATION. . .By Mr. May:

Q. Will you please state your full name and occupation T A. V\Tilliam B. Eubank, owner of Cary Street Garage. Q. How old are you T ... li.. Twenty-seven. Q. What has been your education up to this timef A. Finished Hig·h School. Q. What high school did you go to? A. John Marshall. I had four years at V. M. I. Q. Are you a graduate of V. 1\f. I. T .A. Yes, sir. Q. Of what school are you a graduate there, Mr. Eubank! A. Civil Engineering. Q. How long have you been operating a place such as the

Cary Street Garage? A. Two and a half years. Q. What do you pretend to do there with reference to the

mounting and inflating of truck tires f A. Well, my job there is a type of shop manager as much

as anything else. Sometimes, of course, I do the page 88 ~ actual work. It depends on how busy we are.

Sometimes I inflate tires, myself.

C. D. Kenny Co. v. vVilliam James Dennis. 6J

Q. Did you start there as manager or otherwise Y A .. Yes. Q. So, you have been in close ·contact with the actual mount

ing· of these things, yourself, for the past two and a half years, as I understand it 7

A. Yes. Q. Arc you familiar with the kind of tire equipment on a

White truck¥ A. Yes, sir. Q. Pursuant to my request have you seen the particular

equipment on this tire! A. Yes, sir. Q. Is that equipment standard equipment Y A. Yes, sir. Q. What is your opinion as to the proper maimer in whic4

a tire of that kind should be inflated when it has no air in it at allY

.l1.. You should first see that the lock rim ·and ring are in proper place. As soon as they are in proper place you turn the lock rim away from you and inflate the tire.

Q. Why do you say you should turn the lock rim and tire away from you, Mr. Eubank?

page 89 ~ By Counsel for Plaintiff: I object to that line of questions, your Honor, on the ground we feel he

has not qualified as an expert. By the Court : He testified that he was a graduate in en

gineeiing and had experience at his place of business in changing tires, &c. It is a question for the jury to pass on as to whether or not he possesses such knowledge.

By Counsel for Plaintiff: I 'vithdraw the objection.

-''-·· Well, I have heard of cases where those lock rims have come off for some reason or other. In case you turn them away f~·orn you, if they do fly off they will not injure anybody, if so, not seriously.

CROSS EXAMINATION.

By Mr. Dervishian: · Q. J\tlr. Eubank, you have testified you would turn the tire

and rim with the lock rim a'vay from you when inflating the tireY

.... ~. I did not say when you begin When once the lock rim is locked the chances are you will not have any trouble with it.

64 Supreme Court of Appeals of Virgima.

Q. How much air would you put in it to see that it is locked¥ A.· Just enough to see that it is locked.

page 90 t Q. Would that be as much as would be found in a tube that carried eig·hty pounds 7

A. I would say fifteen or twenty pounds. Q. Suppose the tire and the rim were mounted on the wheel

of the truck, how would you inflate that tire? A. Well, if it is not completely flat you could inflate it like

it is; if not, you had better take it off and fix it, because a tire won't go flat unless it is leaking.

Q. Suppose there were eighteen or twenty pounds of air in it would vou tak~ it off?

A. If very flat you would try to take it off. Q. If a truck came into your place of business 'vith four

tires on all four wheels, with some of them almost flat would you jack up the truck and take the rim off¥

A.. 1 don't know that you would do that. If all nearly down you would more or less take it for granted that they had been out of use and yo~ would go ahead and inflate them.

Q. Suppose the truck had been in use 1 A. Well, I would not know how they could get down that

low. l~. We are assuming that is a fact¥ A. I imagine it would be all right to inflate it.


pag·e 91 ~ C. V. MARTIN, being recalled by Counsel for Defendant, testified

as follows:

DIRECT EXAMINATION.

By j\tfr. May: Q. ~Ir. :rvfartin, how many trucks do you have under your

supervision-do you endeavor to have a mechanic to do what work is necessary on those trucks? ...

A-. No, I could not afford to do that . ., Q. Do you parcel that work out to people who are in the

· business here to do that? A. Yes, sir.


By ~{r. May: The tire and all of the equipment incident thereto used for illustration are introduced as ''Defendant's


Exhibit AJ', earmarked with the style of this action and '~Exhibit F. T. S. Jr. J\iay 16th, 1935".

By 1\fr. 1\{ay: That is the defendant's case, your Honor.

page 92 ~ REBUTTAL EV1DENOE.

C. W. ARMISTEAD, being recalled by Counsel for Plaintiff in rebuttal, testified as follows:

DIRECT EXAMINATION.

Bv Mr. Dervishian: · Q. l\tir. Armistead, do you recall several days ago when Mr.

Sharove, you and myself visited Mr. Hunting·ton's place of business on Grace Street?

A. Yes, sir. Q. Do you recall our asking him any questions about this

particular rim? A. Yes, sir. Q .. vVill you tell the jury ·what he told us¥ A. \Ve questioned Mr. Huntington about this rim and he

told us he had not inspected this rim at all. It 'vas turned over to his man without any inspection by lili:n. Concerning the inspection of a truck tire he told us he would inflate the tire from the outside, and the reason this man did not have any trouble with the rim was because I had straightened the

rhn and cleaned out some of the rust, myself. pag·e 93 ~ Q. Please state 'vhether or not he told us he

had never seen the rim; that it had been over a year since it came into his place, and he did not remember?

A. That is right, and he just made a bill out after the work was completed in the regular routine of his \Vork to the C. D. Kenny Company, and he told us the amount of his bill was seventy-five cents.


N ote.-At this point the Court excused the jury until tomorrow mor11ino:, July 21, 1934, at 10 o'clock.

By Mr. lVIay: If your Honor please, now that the case is fully developed, I desire to renew my motion to strike .the evidence, of the plaintiff, on the ground that all of the evidence has been developed from him, and we contend ~hat there was

66 ·· Supreme Uourt of Appeals of Virginia.·

no duty to inspect and, hence, there can be no evidence of negligence, because all that i!:l· claimed is there is an infer-

. ence of neg-ligence concerning rust, which may page 94 ~ have been either in the channel, or on the·lock rim,

itself. By the Court: The motion is overruled. By 1\lr. May: I note an exception.

INSTRUCTIONS.

The following instructions, granted or r~fused at ·the request of the plaintiff and the defendant, as hereinafter noted, are all of the instructions that 'vere granted or refused on the trial of the case. ·

·A. GRANTED FOR THE PLAINTIFF.

INSTRUCTION NO. 2.

''The Court instructs the jury that contributory negligence on the part of William James Dennis cannot be presumed in any particular, but that it must be proved as any other fact; and the burden of proving by a preponderance of the evidence that William James Dennis was guilty of negligence that efficiently contributed to cause his injury is on the de-

fendant, C. D. l{enny Company, unless it appears page 95 r from the testimony of the plaintiff or may be fairly

inferred from all the facts and circumstances iu evidence. If vou are-unable to determine from the evidence whether William James Dennis was or was not guilty of negligence that efficiently contributed to the cause of his injury, or if you believe that the evidence as to such negligence on his part is evenly balanced, or that it is just as probable that he was not guilty of such negligence as that he was, then you cannot deny the plaintiff a recovery in this case on the ground of contributory neg·lig-ence. ''

INSTRUCTION NO. 3.

''The court instructs the jury that if the tire and rim were turned over. to- the plaintiff for inflation solely for .the accommodation of the defendant company, then it was the duty of the defe~dant company to inform the plaintiff of any defects in the said .equipment or any improper assemblage thereof, which it knew of, or 'vas caused by its recent work on the tire, unless such defect or. improper assemblage ·was· so open and obvious as to be readily discernible to the plaintiff by the exercise of ordinary care.''

C. D. Kenny Co. v.- William James Dennis. 67

page 96~ INSTRUCTION NO. 4.

''The court instructs the jury that if you :find a verdict for the plaintiff in this case; then in assessing his damages you .may find the same "rith reference to:

1. His physical pain and mental suffering endured because of said injury or which he may endure in the future;

2. The nature and character and duration of his injuries, whether temporary or permanent;

3 . .ft-ny disability, disfigurement, or deformity suffered by the plaintiff and the duration thereof;

4. Any incurred obligation by reason of medical or dental services performed or to be performed by reason of said injury as well as hospital and dental bills incurred.

5. Compensation for time lost from his usual employment by reason of his injury;

And you should fix such sum as will adequately and fairly compensate him, but in no event to ~xceed the sum claimed in the notice of motion for judgment.''

page 97 ~ INSTRUCTION NO. 5.

''The court instructs the jury that if you believe from the evidence that the equipment in this case was turned over to the plaintiff to be inflated solely for the accommodation of the defendant company, and "rithout compensation to the plaintiff, that the defendant company owed the plaintiff the duty of exercising ordinary care under the circumstances to see that the said rim and tire by reason of the defendantts recent assemblage of it were in such condition as not to cause him injury, and if in performing· the defendant cmpany's request the plaintiff was injured 'vi.thout negligence on his part and because of the failure of the defendant company in its duty aforesaid .then you must find your v,erdict for the plain-tiff.'' .

INSTRUCTION NO. 6.

''The court instructs the jury that they alone are to determine from all the evidence in the case whether the defendant company has been negligent in the manner charged in

the notice of motion, and that in considering page 98 r whether there has been any such negligence or not

on the part of the defendant company they may consider any act or omission, adduced in evidence, and in the


consideration thereof, if they are of the opinion that the act or omission is one which the defendant company ought, in the exercise of ordinary care, to have anticipated as likely to result in injury to others, then the defendant company is liable for any injury to the ·plaintiff, proximately resulting therefrom, although the defendant company might not have foreseen the particular injury which did happen, provided the jury further believe from the evidence the plaintiff was free of contributory negligence.''

INSTRUCTION NO. 7.

''The court instructs the jury that there is no denial by the defendant company in this case that James Lewis was its agent, or that he was acting within the scope of his employment at the time of the accident, and if you find your verdict for the plaintiff, it must be against the defendant, C. D. Kenny Company.''

page 99 ~ Counsel for the defendant made the following objections to the plaintiff's instructions:

Each of the plaintiff's instructions is objected to on two grounds, first, that there is no evidence of negligence on the part of the defendant, and, second, that even conceding such negligence, the plaintiff was guilty of contributory negligence as a matter of law.

Instruction No. 5 is objected to on the grounds that there ·is an accommodation feature and that according· to the instruction the defendant owed the plaintiff the duty to see that the rim and tire were in such condition as not to cause an injury, which 've submit is erroneous, in that no such duty was owed.

Instruction No.6 is objected to on the same grounds as heretofore pointed out "rith reference to Instruction No. 5.

The Court overruled the objections made by the defendant to the plaintiff's instructions and to the overruling of said objections the defendant excepted on the grounds set out in making the objections.


page 100 ~ B. GRANTED FOR 'l'IIE DEFEND.L~NT.

INSTRUCTION NO . .A.

''The Court instructs the jury that no presumption arises in this case that the defendant was negligent upon a mere showing- by the plaintiff that he was injured .. The burden of proof is upon the plaintiff to establish by a preponderance of the evidence that the defendant was guilty .of negligence, and that such negligence was the sole proximate cause of the injuries established. A verdict either as to liability or amount cannot be based upon speculation, surmise, conjecture or sympathy for one of the.parties, but must rest solely upon the evidence in the case and the instructions of the Court. If upon the evidence as a 'vhole you are undecided whether the pjaintiff has established a case, you should find in favor of the defendant.''

INSTRUCTION NO. C.

''The Court instructs the jury that the law requires the plaintiff to exercise reasonable care for his own safety and that he should assume the ordinary risk of injury incident to his position. If in this case you believe the plaintiff wa~: .

_ negligent in inflating the tire in an improper man-' page 101 ~ ner and such negligence efficiently contributed···iii '

any degree to cause the injuries established, you should find in favor of the defendant, regardless of whether you believe it was neg·ligent or not.''

INSTRUCTION NO. D.

''The Court instructs the jury that when there are two ways of doing a particular act, one of 'vhich is known to 'be ·~afe, and the other is known, or by the exercise of reasonabl~ care and judgment should be known to be unsafe, and a party voluntarily elects to perform that act in the unsafe manne.r and such act efficiently contributes in any degree to cause him injury, he should not be permitted to recover, regardless of whether the defendant was guilty of negligence or not.''

INSTRUCTION NO. E.

"The Court instructs the jury that the defendant is not a· guarantor of the plaintiff's s~fety, but should exercise a rea-

70 Supreme Court of Ap~als of Virginia.

- sonable deg·ree of care therefor. If you believe page 102 ~ from the evidence that the defendant or its agent

exercised that degree of care 'vhich a reasonably prudent 1ninded man would have exercised under the same or similar circumstances, you should find in favor of the defendant.''

C. REFUSED FOR TilE PLAINTIFF.

INSTRUCTION NO. 1.

''The court instructs the jury that if you believe from the evidence in this case that on the 3rd day of May, 1933, the plaintiff was injured by the defendant company's equipment and that such injury was brought about through the carelessness, or incompetence, or negligence of the defendant company by its servant acting 'vithin the course of employment, then you must find your verdict for the plaintiff.''

INSTRUCTION NO. 8.

"The court instructs the jury that the plaintiff assumes no risks by reason of the fact that he 'vas in the employ of a : · · service station or garage, and if you believe from page 103 ~ the evidence in this case that the injury sustained · · · · by the plaintiff was caused by the negligence of

the defendant company, then you must find your verdict for the plaintiff unless the plaintiff was guilty of such acts which would constitute contributory negligence on his part."

D. REFUSED FOR THE DEFENDANT ..

INSTRUCTION NO. B.

''The Court instructs the jury that the person who lets an automobile tire to a skilled and experienced repair man to be repaired or tested o'ves to him the duty to disclose any defect in the mechanism 'vhich may render it unsafe or dangerous of which such person has kno,vledge, but does not o~e him the duty to employ the skill of any one to make an examination to discover such defect before delivering· the tire for repairs or testing·. And the Court tells the jury that in this case, if you believe fron1 the evidence that the defendant let a tire to the plaintiff and that it knew of no defoot likely to cause injuries to others when handled in a proper manner, you should find in favor of the defendant, regardless of whether such defect in fact existed or not.''


page 104 ~ INSTRUCTION NO. C-1.

''The Court instructs the jury that the law requires the plaintiff to exercise reasonable care for his own safety and that he should assume the ordinary risk of injury incident to his position. If in this case you believe the plaintiff was negligent in putting too much air in the tire or inflating it in an improper manner and such negligence efficiently contributed in any degree to cause the injuries established, you should find in favor of the defendant, regardless of whether you believe it was negligent or not.-' '

The plaintiff objected to Instruction No. B on the ground that it does not show that there was a duty upon the defendant to exercise proper care in regard to his knowledge of the defect.

The plaintiff objected to Instruction No. C-1 upon the ground that there was no evidence that he was putting too much air in the tire.

The Court sustained the plaintiff's objections to Instructions No. Band C-1, to which action of the Court the defendant excepted.

page 105 ~ I, Frank T. Sutton, Jr., Judge of the Law and Equity Court of the City of Richmond, Part II,

'vho presided over the foregoing trial, do certify that the foregoing is a true and correct copy or report of the testimony and other incidents of the trial of the case of William J atnes Dennis v. C. D. l{enny Company, a Corporation, tried in the Law and Equity Court of the City of Richmond, Part II, on July 20th and 21st, 1934, and that the attorneys for the plaintiff had r~JtSOJla!>le: not~ce; In writing -of the time and place, 'vhen said report of the festimony and other incidents of the trial would be tendered and presented to the undersigned for verification.

Given under my hand this 16th day of May, 1935.

FRANK T. SUTTON, JR., Judge.

page 106} I, Luther Libby, Clerk of the Law and Equity Court of the City of Richmond, Part II, do hereby

certify that the foregoing copy or report of the testimony and other incidents of the trial of the case of William James

72 Supreme Court of Appeals of Virgima .

.. Dennis v. C. D. l{enny Company, a Corporation, was filed with me as clerk of said Court on the 16th day of May, 1935.

LUTHER LIBBY, Clerk. By E. M. EDWARDS, D. C.

page 107 ~ I, Luther Libby, Clerk of the Law and Equity Court of the City of Richmond, Part Two, do

hereby certify that the foregoing is a true transcript of the record in the above entitled action, except the automobile tire, tube and rim filed as "Defendant's Exhibit A", wherein William James Dennis, is plaintiff, and C. D. J{enny Company, a corporation, is defendant, and that the plaintiff had due notice of the intention of the defendant to apply for such transcript. . .

I further certify that the defendant has executed a suspending bond in accordance with the provisions of Section

. 6338, as amended by the Acts of the General Assembly of 1934, conditioned as required for a supersedeas bond in Section 6351 of the Code, as amended, in the penalty of Thirtyfive· hundred dollars.

Witness my hand this 18th day of May, 1935.

LlJTB'ER LIBBY, Clerk.

Fee for· R.ecord $42.00.

A Copy-Teste:

M. B. WATTS. C. C.

INDEX

Page Petition for Writ of Error ... d..................... 1 Record. . . . .............................. , ..... ~ . . . . . 18 Notice of Motion for Judgment ....................... 18 Grounds of Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Verdict of Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 ,J udgrn.ent ............................... ,. . . . . . . . . . . . . 23 Stenographic Report of Testimony &c. . . . . . . . . . . . • . . . . • 24

Dr. A. M. Wash ................................ 24 ,Tames Leslie Lewis. . . . ......................... 27

Ct A. Rappley. . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 35

· Dr. T. H. Mayfield. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Charles W. Armistead. . ........................... 45

C. W. Armistead ................................ 46, 65

William James Dennis. . . . . . . . . . . . . . . . . . . . . . . . . . . 50 C. ,r. ~fartin. . . . ............................. 56, 64 Wm. B. Et1bank. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Instructions. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Clerk's Certificates. . . . ............................ 71, 72

i i /) record no. 1723

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