Kennedy v. U-Haul Co., U-HAUL
| Decision Date | 30 June 1971 |
| Docket Number | U-HAUL |
| Citation | 360 Mass. 71,271 N.E.2d 346 |
| Parties | John J. KENNEDY, Administrator, v.CO., Inc. (and a companion case 1 ). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Stanley B. Milton, Worcester, for Ford Motor Company.
Philip J. MacCarthy, Boston, for U-Hall Co., Inc.
Harry Zarrow, Worcester, for plaintiff.
Before TAURO, C.J., and CUTTER, QUIRICO and BRAUCHER, JJ.
A five-year old girl ran into the street between two trailer trucks and was struck and killed by a van-type truck of two and one-half ton capacity. Her administrator brought actions of tort for wrongful death against the driver, against the owner (U-Haul) who had leased it to the driver, and against the manufacturer (Ford). The three actions were tried together, and the jury returned a verdict for the defendant driver, a verdict against Ford for $5,000, and a verdict against U-Haul for $15,000. The latter two cases are before us on the judge's report of the question whether there was sufficient evidence to warrant submitting to the jury the issue of Ford's negligence, and on U-Haul's exception to the denial of its motion for a directed verdict. Although the judge's report as to Ford is not identical to U-Haul's bill of exceptions, the cases were argued together on the same footing, and we do not distinguish the report from the bill of exceptions in summarizing the evidence most favorable to the plaintiff.
The truck was manufactured in November, 1966, and was sold shortly afterward in Portland, Oregon. At that time it had a booster brake system like the one it bore at the time of the accident. In March, 1967, Davis, the proprietor of a service station in Rutland, Vermont, and an authorized U-Haul lessor, acquired it from a U-Haul dealer in Pittsfield, Massachusetts; the mileage on its speedometer was then about 3,387. Davis did a 3,000 mile check in June, when the mileage was 6,212, and the brakes were checked July 29. The vehicle was last serviced on August 12, when the mileage was 9,402. On August 15, about 9 A.M., the truck was leased to the driver in Rutland, showing mileage of 9,402. He drove it to Fairhaven, Vermont, where it was loaded with about 900 pounds of lawn furniture, toys and other things, and he then headed for Worcester. En route he applied the brakes many times, and they worked.
About 2:45 P.M. on August 15, 1967, the driver was driving south on Pearson Boulevard in Gardner, Massachusetts, about twenty miles an hour, not faster than twenty-five miles an hour. The road was a level four-lane road, and the driver was near the center. The right side of his truck was about six feet from the left sides of two trailer trucks parked by a restaurant on his right. The little girl ran between the two parked trucks into his path; his vehicle was about ten feet back from the point where she emerged. He applied his brakes with force; the wheels locked and left brake marks forty-four feet long. When his speed was down to five miles an hour, the brakes failed. The little girl disappeared under the truck, and the driver felt the rear wheels run over her. The truck traveled about twenty feet from the time the driver saw the child until he felt the brakes fail, and it proceeded another fifty feet before coming to a stop.
After the accident, there was a pool of blood in the road about eighteen feet from the curb and some blond hair indicating where the girl's body had been before it was moved. Parts of the brake system in a pool of brake fluid were a couple of feet from the pool of blood. The tire marks extended about ten feet south from the pool of blood. A cap from the brake system was broken and part of it was hanging down, suspended by a hose. A broken and rusty bolt from the system was among the parts found in the road.
An expert called by the plaintiff testified that the cap, since it was...
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