Judgment for $7,500 was rendered on a jury’s verdict to compensate the estate of Flobert Shoptaw because of his death. R. E. Sallee, doing business as Sallee Brothers (against whom the judgment went) has appealed on the ground that there was no substantial evidence of negligence.
Appellant manufactures timber products, and operates from Pocahontas. In March, 1945, it sent one of its trucks into Grant County. H. B. Jordan maintains an Esso filling station at Sheridan, and Shoptaw was his employe. Sallee’s truck was driven' by Clay Kincade. En route from Pocahontas to Warren by way of Sheridan, Kincade stopped for lunch half a block from Jordan’s station. The rear “tractor” or axles of the truck were equipped with dual, wheels, on each side. When Kincade had finished his lunch he discovered that the inside riglit rear tire was “flat.” Kincade walked to the filling station, where Shoptaw told him to drive the truck to the grease rack for necessary repairs.
Kincade stood by while Shoptaw removed the rim containing. the punctured and deflated tires — casing, inner tube, and “reliner.” Evidence offered by appellee (plaintiff below) is that the heavy metallic rims used' on Gr.M.C. trucks are of two kinds: one “solid,” a continuous circular casting or forging. The other is what manufacturers term a ‘ ‘ split ” or“ breakable ’ ’ rim: that is, the circumference or closed plane which forms the rim is cut at right angle to the curve, permitting the severed ends.to be disengaged and overlapped. Result is that the circumference is reduced so that the casing may be put on or taken off.
One side of the rim contains a solid or made-on rim or flange to serve as a wall for the casing. The other side is made with á much smaller ‘ ‘ ridge ’ ’ or margin, having an inside groove. A so-called flange and “lock-rim” fit into the groove provided for that purpose. Since the main rim upon which the casing is mounted, and the lock-rim and flange which hold it in place, are made of steel or other metallic alloy, elastic to the extent that the circumference may be increased or decreased within limits, it follows that in mounting or demounting a casing, making repairs, etc., certain care must be exercised, and some skill is required.
After Shoptaw had removed the rims, vulcanized the tube, and had reassembled the parts, inflation was attained at eighty pounds .pressure, He then replaced the “wheel” and had partially screwed on two of the “lugs” (or an inference to that effect arises from the testimony) when the inner tube blew out with terrific force. A part of the metallic equipment struck Shoptaw, injuring him fatally. The rim and locking device are exhibits and were brought to this Court.
Appellee’s argument is (a) that appellant was negligent in delivering for repair a “flat” tire mounted on a defective rim; (b) appellant’s- conduct in using . . an International rim and wheel with split rim instead of the regulation G.M.'C. rim and wheels that were of manufacturer’s design” was negligence; (c) Kincade was negligent in directing Shoptaw to inflate to eighty pounds, . . when he knew the inner tube was defective, having been patched.” (d) Because of defective “packing” or an imperfect valve, or due to a “leak,” transmission grease escaped and had accumulated on the wheel, “. . . causing it to become more dangerous in operation by being slick,” etc. (e) Appellant was negligent in not informing [Shoptaw] of defective condition [of the wheel] when [its condition constituted] a hidden danger, and when it was covered with grease, mud, and dirt to the thickness of an eighth of an inch, [preventing Shoptaw] from seeing, knowing, and appreciating the danger.
First. — (a)—There is no direct evidence that Kin-cade or appellant knew the rim was defective. Testimony was that prior to the trip to Sheridan Kincade stated he had experienced difficulty with the rim. Such testimony was used for impeachment purposes, Kincade having-denied the alleged conversations. Appellee argues that the test is not what appellant or Kincade knew, “. . . but what, by the exercise of ordinary care, they could have known.” If it be assumed that tire blowouts had occurred, there is no evidence that the malfunctioning of the locking device, now complained of, was known to appellant or Kincade, or that its actual condition was' such as to put a reasonably prudent person on notice.
Second. — (b)—Testimony by appellee’s witnesses is that the type of rim used on the truck was not unusual. There is no proof that it was inherently dangerous.
Third. — (c)—It was shown by appellee’s own witnesses that a tire such as that repaired by Shoptaw carried from sixty-five to one hundred pounds of air- — the amount depending upon load, road conditions, and the driver’s preference. The casing did not “blow” or tear —only the inner tube gave way.
Fourth. — (d)—If dirt accumulated on the wheel because of escaping grease, that fact was more apparent to Shoptaw than it was to Kincade, for Shoptaw dismantled the equipment, worked with it, and put the parts back in the position from which they were taken.
Fifth. — (e)—The “hidden danger” complained of was an incident to the task Shoptaw undertook to perform. It is a grievous misfortune when .tragedy occurs in the manner here disclosed; but before a defendant can be required to respond in damages (other than in cases of insurance and under Workmen’s Compensation Laws) some negligence must he shown by substantial testimony.
Irrespective of the technical legal relationship created when Kincade went to the filling station for repairs —whether employer and independent contractor, master and servant, bailor and bailee- — the naked fact remains that Shoptaw, acting for his principal, received the track for the purpose of repairing the tube. The so-called “dangerous condition” it is contended Kincade knew of, or by the exercise of ordinary care could have become informed, related to the tire and rim upon which Shop-taw worked, and the condition was such as might have pertained to any rim in the circumstances here disclosed. It must be held, therefore, as a matter of law, that Shop-taw assumed the incidental risks. When, after dismounting the casing, repairing the tube, and replacing the equipment, he did not discover the flaws, how can it be said that a question of fact was made for the jury when Kincade failed to tell Shoptaw that the rim was warped, that the locking device might not function, and that eighty pounds of air pressure would possibly blow the casing off?
There should have been an instructed verdict for the defendant. The judgment is reversed, and the cause is .dismissed.