190 F.2d 910 (4th Cir. 1951), 6281, Pierce v. Ford Motor Co.

Docket Nº:6281, 6282.
Citation:190 F.2d 910
Party Name:PIERCE et al. v. FORD MOTOR CO. et al. MAHONE v. FORD MOTOR CO.
Case Date:August 10, 1951
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 910

190 F.2d 910 (4th Cir. 1951)

PIERCE et al.

v.

FORD MOTOR CO. et al.

MAHONE

v.

FORD MOTOR CO.

Nos. 6281, 6282.

United States Court of Appeals, Fourth Circuit.

August 10, 1951

Argued June 21, 1951.

Page 911

Ashby B. Allen and George E. Allen, Richmond, Va. (Callom B. Jones, and Allen, Allen, Allen & Allen, Richmond, Va., on the brief), for appellants.

Aubrey R. Bowles, Jr., Richmond, Va. (H. Armistead Boyd, and Bowles, Anderson & Boyd, Richmond, Va., on the brief), for appellee, Ford Motor Co.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

These are appeals in two personal injury cases in which summary judgments were entered for the defendant, Ford Motor Company. Plaintiffs in both cases sued for damages for injuries sustained when a new Ford automobile was wrecked as

Page 912

the result of the blowing out of one of its tires which plaintiffs alleged was caused by faulty workmanship in the assembly of the turnbuckle or adjusting sleeve on the left front tie rod, and that this allowed the turnbuckle to move and throw the front wheels out of proper alignment. The summary judgments were granted on the pleadings, pretrial examinations and affidavits from which the learned judge below was of opinion that upon the facts so developed 'any verdict in favor of the plaintiff would be based upon conjecture and speculation.' The question as to the correctness of this ruling is presented by both appeals. The appeal in No. 6281 presents the additional question as to whether it was proper to allow the defendant to bring in the driver of the car as a third party defendant; that in No. 6282, the additional question as to whether plaintiff should be allowed to file an amended complaint.

We think it clear, not only that there are substantial issues of fact involved in the charge of negligence contained in the two cases, but also that, so far as can be judged from the pleadings, examinations and affidavits, they are issues that will have to be passed upon by a jury. It is admitted that the car was a new one, having been purchased by the husband of the plaintiff Mrs. Mahone less than two weeks before the accident, and that it had been driven less than 900 miles. It is also admitted that the blowing out of one of the front tires was the cause of the accident and that this was caused by the tire's being worn to the cloth as a result of the front wheels being out of proper alignment. There is evidence that this misalignment was caused by the turning of the turnbuckle or adjusting sleeve on the left front tie rod which was clamped in place by two bolts and self locking nuts; that the turnbuckle should be tight and when tight will not turn; that it, along with the nuts and bolts, was found to be loose immediately following the accident; and that this was the cause of the trouble. There was evidence, also, that the car had been driven only by Mrs. Mahone and her husband and that they had done nothing which could have caused the turnbuckle to become loose or to turn; that there was no indication on the turnbuckle of the use of any such force upon it as would have been necessary to turn it if it had been tight; that there was no stripping of the threads of the nuts or bolts as a result of the movement; that this indicated that the turnbuckle was loose; and that a reasonable explanation of the occurrence was that the turnbuckle was negligently left loose when the car was turned out at the factory and that it was held in place by the paint which was applied to it and the tie rod until the movement of the car caused it to overcome the slight restraint thus afforded.

A fact strongly relied on by the defendant is that the car was examined by a mechanic of the dealer that sold the car before it was delivered to the purchaser, and that it was the duty of the mechanic to check the turnbuckle and see that it was tight and properly adjusted. This mechanic gave a pretrial deposition in which he testified that he had no recollection of checking this particular car, apart from the certificate which he signed, but that, when called upon to check a car, he was accustomed to examine the turnbuckles on the tie rods to see if they were tight, and, if not, to tighten them; and that from the certificate which he had signed he knew that he had checked this car and had either found the turnbuckle tight or had tightened it.

On the facts as thus developed we think that the issue as to the negligence of the defendant was clearly for the jury. Without invoking the res ipsa loquitur rule, we think the jury could well have found that the turnbuckle was loose when the car left the factory and that this was the cause of the wreck. That the turnbuckle might have been loosened by something that happened while the car was in the possession of Mrs. Mahone and her husband, is a matter for the jury's consideration; but, if the evidence of these persons is accepted by the jury, nothing could have happened while it was in their possession to explain the loosening of the turnbuckle if it had been properly tightened.

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So far as the evidence as to inspection by the mechanic is concerned, the jury might believe that no proper inspection had been made by him. In a federal court, it is for the jury, not the judge, to say what evidence it will believe and what inferences or conclusions it will draw therefrom, even though it is susceptible of conflicting inferences. Tennant v. Eoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520. As the rule is one involving the exercise of the judicial function, the state practice is not binding on the federal courts, but we note that this is the rule in Virginia also. See Barry v. Tyler, 171 Va. 381, 199 S.E. 496, 499; Torbert v. Atlantic Coast Line R. Co., 122 Va. 682, 95 S.E. 635. The rule of the federal courts is thus stated in Tennant v. Peoria & P.U.R. Co., supra: 'It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference of conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235; Tiller v. Atlantic Coast Line R. Co. supra, 318 U.S. (54) 68, 63 S.Ct. (444), 451, (87 L.Ed. 610), 143 A.L.R. 967; Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored.' (321 U.S. 29, 64 S.Ct. 412.)

For cases similar to the one at bar, in that the contention as to the existence of negligence in the manufacture of a motor vehicle was based largely on the condition of some part of the vehicle after an accident and in that the case was held for the jury notwithstanding argument that a verdict on such evidence would be speculative, see General Motors Corp. v. Johnson, 4 Cir., 137 F.2d 320; Hupp Motor Car Corp. v. Wadsworth, 6 Cir., 113 F.2d 827.

It is argued that any negligence of the manufacturer in turning out a defective car is insulated by that of a mechanic who inspects it afterwards so that the latter will be deemed the prosimate cause of any injury resulting from its defective condition; but this argument is entirely without merit. As said in Harper on Torts ch. 7 sec. 106, quoted in Foley v. Pittsburgh-Des Moines Co., ...

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