440 S.W.2d 630 (Tex. 1969), B--1172, Darryl v. Ford Motor Co.
|Citation:||440 S.W.2d 630|
|Party Name:||Harold DARRYL et ux., Petitioners, v. FORD MOTOR COMPANY, Respondent.|
|Case Date:||April 23, 1969|
|Court:||Supreme Court of Texas|
Rehearing Denied May 28, 1969.
Jack Hazlewood, Amarillo, for petitioners.
Gibson, Ochsner, Harlan, Kinney & Morris, Max R. Sherman, Amarillo, for respondent.
This is a suit for damages arising out of a rear-end collision filed by Petitioners Harold Darryl and wife, Anita Darryl, against Defendant John D. Voyles, alleging various counts of negligence, and against Respondent Ford Motor Company for negligence in equipping Voyles' truck with defective brakes, and in the alternative, strict liability in tort. The trial court entered judgment upon the verdict in favor of petitioners against Ford but denied recovery against Voyles and also denied recovery by Ford against Voyles for contribution or indemnity. Both Darryl and Ford failed to perfect their appeals as against Voyles. The Court of Civil Appeals at Amarillo affirmed the judgment of the trial court in favor of Voyles and reversed the judgment against Ford and rendered judgment that the petitioners take nothing. 432 S.W.2d 569.
Petitioners in Court have abandoned their negligence theory and rely on strict liability in tort.
Writ of error was granted on petitioners' first point, which complains of the Court of Civil Appeals holding that there was no evidence to support the finding of the jury that the defective condition of the push rod existed at the time when it was sold by Ford Motor Company.
We hold that there was some evidence to support the submission of the following issues and to support the jury's answers thereto: 6a--that the push rod bent under pressure placed on the brake pedal by Voyles in an effort to stop the vehicle; 6b--that the bending of the push rod was a proximate cause of the collision; 6c--that the push rod bent because it was defective at the time it was sold by Ford Motor Company; 6d--that the defective condition of the push rod was a proximate cause of the collision in question; 7--that the bending of the push rod did not occur at the time of the impact of the vehicle in question; 8a--that Voyles' brakes failed suddenly and unexpectedly when he stepped on the brake pedal immediately before the collision; and 8b--that such failure was the sole proximate cause of the collision.
Defendant Voyles testified in substance as follows: He bought the new truck in June, 1965 from an authorized Ford dealer, Sid Stout. The collision occurred on August 27, 1965. At the time of the accident the mileage on the truck was only six or seven hundred miles. Until the harvest began on August 25, 1965 he drove only 80 to 100 miles. Most of the mileage had been placed on the truck during the seventy-two hours preceding the accident. From the date of purchase to the time of the accident he had no repairs made on the truck. The brakes had worked perfectly up until the accident.
In describing the accident, Voyles related that he entered Western Street at 45th Street, where he came to a complete stop. He proceeded north on Western Street for several blocks. He noticed the Darryl car slowing down, apparently to stop or to turn. When he put his foot on the brake it kind of 'fluttered a little bit and then went free-wheeling into the back of the car.' His application of the brakes did not slow him down at all. He said, 'When I went to stop the truck, that is when I bent it.' The truck left no skid marks. He was not sliding. The pavement was wet. He said he thought he would know whether he was sliding or stopping. The brake pedal went to the floorboard. He had no pedal; it offered no resistance at all. After the accident, he demonstrated to the officer that the pedal would go all the way to the floor with no suggestion of back pressure. The rear of the Darryl car was damaged badly. There was No damage to the truck--'not a scratch.'
On the night of the accident the bent push rod was removed from Voyles' truck. The only repair made to his brakes was the replacement of the bent push rod. No brake fluid was added. No other repairs were made to the truck.
The next morning after the repair was made Voyles started hauling again and had no trouble with the brakes. He sold the truck about two months after the...
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