Under the evidence taken in the light most favorable to plaintiff, did the defendant fail to perform any duty which it owed to the plaintiff?
Such a duty, if it exists, cannot be made to depend entirely upon either of the two relations which it is suggested might obtain between the parties, that is, the relation of bailor and bailee or master and servant, although either relation, if it existed, might present a special phase of the subject and conceivably might affect the application of the rule. Incidentally we find in the present record no evidence of bailment, since defendant’s truck was at no time in the exclusive control of the plaintiff *729or the filling station operator. Further, it is not necessary to consider the suggested relationship of master and servant, since the question we have asked ourselves may be solved from an independent point of view.
It is, of course, not necessary that a duty, the violation of which may constitute actionable negligence, should arise out of any contractual relation between the parties. There are other relations and situations or circumstances attending the occurrence or transaction connected with the injury which may give rise to such a duty. The defendant owed to this plaintiff the duty of refraining from subjecting him without warning to danger from a condition which was known to it, or could have been known by the exercise of due care, and “there is a general duty owing to others of not injuring them by any agency set in operation by one’s act or omission.” 45 C. J., p. 645; Cashwell v. Bottling Works, 174 N. C., 324, 93 S. E., 901. The latter case quotes, with approval, Heaven v. Pender, 11 L. R. (1882-’83), p. 503: “Whenever one person is by circumstances placed in such a position towards another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, duty arises to use ordinary care and skill to avoid such danger.” Lisle v. Anderson, 61 Okla., 68, 71, 159 P., 278.
The defendant owed to the plaintiff the duty of exercising reasonable care not to expose him to danger in the invited or permitted use for its benefit of machinery, appliances, or equipment inherently dangerous or which had become dangerous while in its control, if the condition was known to it or could have been known to it by the exercise of due care. Moreman Gin Co. v. Brown, 291 S. W., 946, (injury caused by breaking of tackle which plaintiff was invited to use in unloading cotton) ; Pennsylvania R. Co. v. Hummel, 167 Fed., 89 (injury to plaintiff caused by furnishing his employer with defective car to be loaded) ; Connor's v. Great Northern El. Co., 9 App. Div., 311, 323, 85 N. Y. S., 644 (injury from use of defective appliance when no contractual, relation existed); King v. National Oil Co., 81 Mo. Ap., 155 (injury caused plaintiff by dangerous condition of wagon he was repairing) ; MacPherson v. Buick Motor Co., 217 N. Y., 382, 390, 111 N. E., 1050: “He who puts a thing in charge of another which he knows to be dangerous or to be possessed of characteristics which in the ordinary course of events are likely to produce injury owes a duty to such person to give reasonable warning or notice of such danger.” Kutchera v. Minneapolis etc. Railroad Co., 50 N. D., 597, 603, 197 N. W., 140.
The evidence taken in the light most favorable to the plaintiff tends to show that the truck was equipped with dual wheels, the dual wheels being assembled so closely together that the hand could be with difficulty *730inserted between them; that tbe outer wheel was so mounted that tbe openings in it, referred to in tbe evidence as openings between tbe spokes, were not in proper correlation witb tbe inner wheel so that tbe valve stem used for inflating tbe tire of that wheel could be easily accessible, which is declared by tbe witness Jantsch to be an improper mounting; that tbe truck bad been originally equipped witb tires or tubes carrying a long valve stem, which would render it unnecessary to insert tbe band between tbe wheels in tbe process of inflation; that the truck bad been driven eighteen or twenty miles witb a slack tire on tbe inner wheel, and although presumably supported by tbe outer fully inflated tire, tbe supporting rim or flange of tbe inner tire may have been disarranged from its proper assemblage by bumping on irregularities in tbe road, this effect being more easily brought about on account of the increase of weight upon tbe inflated tire. It further tended to show that tbe long valve stem witb which tbe truck bad been originally equipped bad been removed and a short valve stem substituted for it, and that this was less safe; that tbe defendant itself used a long chuck or nozzle upon tbe air hose as a safety device in inflating tbe tires.
Tbe evidence tends to show that McLeod and Henry, in charge of tbe truck, bad undertaken tbe inflation themselves and accepted tbe services of plaintiff during tbe job because bis band was smaller than theirs and could be more readily inserted between tbe wheels in order to keep tbe air hose in contact witb tbe short valve stem during inflation.
Plaintiff received bis injury from tbe rim flange of tbe inner wheel, which “flew loose,” pinning bis left band between tbe wheels and injuring tbe thumb of bis. right band, which band be bad thrust through an opening in tbe outer wheel to reach tbe short valve of tbe inner stem.
While McLeod and Henry disclaimed any knowledge of tbe danger, and one of them declared that be bad never before seen a rim fly off that way, it is not denied that they drove tbe truck witb a slack tire for eighteen or twenty miles, and under the circumstances of this ease it is a question for tbe jury as to whether or not this may have involved tbe creation of a dangerous situation which was known to defendant’s agents, or ought to have been known by tbe exercise of due care, and of which it was their duty to inform tbe plaintiff.
Tbe judgment of nonsuit is