RUARK, Presiding Judge.
This is an appeal by plaintiff from a verdict-based judgment for defendant-respondent in a suit involving personal injuries in the form of burns which resulted from the explosion of can of paint.
The pleadings: Count I, upon which plaintiff submitted, was based on implied warranty. It alleged that plaintiff purchased two sealed gallon cans of outside white paint from a local supply company. Such paint was manufactured by the defendant and placed for sale with the implied warranty that it was fit and proper for use, but that such implied warranty "was false and untrue and that said paint was unsound and unsuitable for painting and was in fact highly volatile and inflamable"; that the cans exploded and sprayed flaming paint upon plaintiff's body, causing the personal injuries complained of. Defendant's answer included, among other things, contributory negligence and assumption of risk.
The evidence: Plaintiff, who was a farmer but had previously had about three years' experience in a general country store which sold paint among other things, bought two one-gallon cans of outside white with sealed covers, a gallon of thinner and one quart of enamel. These were placed in a carton and put in the back of his pickup truck. This was on a clear but windy May 3rd, with temperature about eighty degrees. There was no fire around the paint. He parked his truck in the driveway about fifty feet from his house and about thirty feet from a smaller building where he went to clean his brushes. While he was so cleaning brushes, one of the cans of outside white exploded and the lid fell close to where he was standing. The carton caught, or was, afire. Plaintiff seized a spade and ran to the side of the truck, intending, as he said, "to
On behalf of defendant, the Court gave Instruction No. 6 which is as follows:
Plaintiff contends that is practically a peremptory instruction for the defendant since it hypothesizes the facts of plaintiff's case; that such instruction (a) does not require a finding that plaintiff's conduct was voluntary, (b) does not require a finding of knowledge (c) does not relate plaintiff's conduct to any standard of care or require a finding that he acted unreasonably. He contends that the evidence showed that plaintiff was confronted with a choice of attempting to protect his property from destruction due to defendant's tortious conduct and that his conduct was reasonably necessary and therefore not voluntary. Defendant-respondent contends the instruction was proper because (1) defendant was entitled to a directed verdict because plaintiff left a place of safety and entered an area of apparent danger for the sole purpose of
It is our view that defendant's Instruction No. 6 was insufficient because it did not fairly submit the question of whether plaintiff was in the exercise of ordinary care in entering upon the course of conduct which he did enter upon.
We will not compound the confusion surrounding the doctrine of assumption of risk, or of "incurred risk," by attempting to wade through the various distinctions and definitions or by considering whether or not (except perhaps for risks expressly assumed) there is any further need in the law of Missouri for doctrine.
Assumption of risk is based upon consent, assent, or "waiver" of the results coming from the plaintiff's conduct in entering into the place of peril, or upon the course of chosen conduct. Such being the case, this consent must be (a) voluntary, and (b) with knowledge, comprehension, or "appreciation" of the risks involved. 65 C.J.S. Negligence, § 174, p. 848 et seq.; 38 Am. Jur. Negligence, § 173, p. 847; Terry v. Boss Hotels, Inc., Mo., 376 S.W.2d 239; Fletcher v. Kemp, Mo., 327 S.W.2d 178, 183, 186. Where plaintiff claims the defendant owes plaintiff an affirmative duty and a wrong is done in violation of that duty, and as a consequence of that wrong and as a choice of alternatives the plaintiff enters upon a course of conduct which involves a danger, the end product may be what some writers refer to as assumption of risk in the "secondary sense."
The voluntary choice above referred to means one made with freedom of will, with "more or less deliberation" (82 A.L.R.2d, Annot., p. 1233), and the "voluntariness" and appreciation of dangers involved in making that choice are somewhat related and interdependent; both involve the exercise of mental processes. The reasonable person when confronted with an emergency not of his own making, or the necessity of making a sudden decision, has less opportunity to "deliberate" in order to determine what course of action he should (or should not) follow and, in some instances at least, less opportunity to comprehend and "appreciate" the risk which he
But what was the risk assumed ? One is not ordinarily required to assume in advance the risk of another's wrongful act which he has no opportunity to anticipate. Hathaway v. Evans, Mo.App., 235 S.W.2d 407(8); McCormick v. Lowe & Campbell Athletic Goods Co., 235 Mo.App. 612, 144 S.W.2d 866. And one has the right to rely upon a warranty or representations until common sense tells him he cannot (see Humbyrd v. Spurlock, Mo.App., 345 S.W.2d 499, 502, and cases at Footnote 6). The plaintiff had the right to assume the outside white paint was fit for ordinary use (and did not have a tendency to explode) until he should have known better. The explosion of one can would advise him that that can was not fit and was explosive; to a lesser degree he would have cause for apprehension as to whether all of defendant's outside white paint would explode. The real risk assumed, however, was not the fact of another possible explosion as such, but the risk that it would be of such nature as to cause injury to the plaintiff in the circumstances here related.
To be charged with assumption of risk, one must not only know the facts which create the danger but must comprehend and appreciate the danger itself. Prosser, Law of Torts, Hornbook Series (2d Ed.), p. 309; Humbyrd v. Spurlock, supra, 345 S.W.2d 499, 503, and cases at Footnote 10. And one's knowledge of a general condition from which the danger arose does not necessarily constitute knowledge and appreciation of the danger of injury. Gitterman v. Danella, Mo., 356 S.W.2d 52, 54-55; Russo v. Garrison, Mo.App., 357 S.W.2d 257, 260. The mere knowledge of the fact that an injury might result without appreciation of the risk to which his conduct exposed him is not sufficient. Hosford v. Clark, Mo. App., 359 S.W.2d 424, and cases at 428. Assume that plaintiff knew there was the likelihood of explosion of the second can. It does not necessarily follow as a matter of law that a reasonably prudent person in the
In Bartels v. Continental Oil Co., Mo., 384 S.W.2d 667, a fireman at a burning bulk storage plant was injured by an exploding fuel tank which, unknown to him, was improperly vented. It was held that an instruction submitting ordinary care for his own safety was required. In Lee v. Missouri Pac. Ry. Co., 195 Mo. 400, 92 S.W. 614, 621, an instruction which hypothesized the unblocked guard rails, the knowledge of such; and the experience of the injured person in regard to the dangerous condition, but omitted the question of whether he might have reasonably hoped to avoid injury by the exercise of ordinary care, was held deficient.
We think it was for the jury to determine whether or not the plaintiff was to be charged with knowing and "appreciating" that he would likely be injured by an explosion of the second can of paint, and thus whether or not he exercised ordinary care in going out to the truck in the circumstances here related. But the jury was not given the opportunity to pass on that question. The instruction hypothesizes the situation, the fire and the first explosion, and the danger of another explosion, and directs a verdict. It condemns plaintiff's case if he knew or should have known these facts; it does not give the jury the privilege of determining the question of whether or not, on these conceded facts, the plaintiff was in the exercise of reasonable care in entering upon the course which he followed. For that reason we think the instruction is insufficient and that the judgment should be reversed and the cause remanded. So ordered.
STONE and HOGAN, JJ., concur.