Elmore v. American Motors Corp.

• Decision Date: 11 March 1969
• Citation: 451 P.2d 84,75 Cal.Rptr. 652,70 Cal.2d 578,33 A.L.R.3d 406
• Court: California Supreme Court
• Parties: , 451 P.2d 84, 33 A.L.R.3d 406 Sandra Lee ELMORE, Plaintiff and Appellant, v. AMERICAN MOTORS CORPORATION et al., Defendants and Respondents. Anna May WATERS, Plaintiff and Appellant, v. AMERICAN MOTORS CORPORATION et al., Defendants and Respondents. L.A. 29594, 29595.

Page 652

75 Cal.Rptr. 652

70 Cal.2d 578, 451 P.2d 84, 33 A.L.R.3d 406

Sandra Lee ELMORE, Plaintiff and Appellant, v. AMERICAN MOTORS CORPORATION et al., Defendants and Respondents.

Anna May WATERS, Plaintiff and Appellant, v. AMERICAN MOTORS CORPORATION et al., Defendants and Respondents.

L.A. 29594, 29595.

Supreme Court of California In Bank.

March 11, 1969.

James H. Davis, Los Angeles, and Edward L. Lascher, Ventura, for plaintiffs and appellants.

Booth, Mitchel, Strange & William, George C. Mitchel, Los Angeles, Sweeney, Cozy & Foye, Manhattan Beach, Thomas P. Foye and Raymond A. Cozy, Torrance, for defendants and respondents.

Morgan, Wenzel, Lynberg, Stearns & Morris and Wm. Marshall Morgan, Los Angeles, as amici curiae on behalf of defendants and respondents.

PETERS, Justice.

In these consolidated personal injury and wrongful death actions growing out of an automobile collision, the trial court at the conclusion of the plaintiffs' cases in chief granted motions for nonsuit by defendants American Motors Corporation and Mission Rambler Company and dismissed the jury. Plaintiffs have appealed from the ensuing judgments.

On March 16, 1962, plaintiff Mrs. Sandra Elmore and her husband purchased a 1962 Rambler American station wagon from Mission. The car had a standard transmission. It was not equipped with power steering or power brakes. Mrs. Elmore used the car to commute to work. The car was serviced by Mission after it had been driven about 1,500 miles. The car was lubricated and the oil and oil filter changed. Subsequently, Mrs. Elmore noticed that the car was shimmying when she drove it between 60 and 65 miles per hour.

She told her husband about the shimmying and asked him to drive the car. He could barely detect the shimmying and did not think it was sufficiently serious to warrant Mrs. Elmore taking time from her work to return the car for servicing. The Rambler had been driven 2,751 miles before the accident.

The accident occurred shortly after noon on April 29, 1962, a bright clear day. Mrs. Elmore was driving in a southerly direction on a three-lane road near Northridge. She suffered head injuries and was unable to remember anything about the day of the accident.

Mr. Hendley testified that he was following the Rambler for about a mile and a half before the collision, that Mrs. Elmore was travelling about 45 miles per hour, that she had caught up with the traffic in front of her and had started to pull out as if to overtake the vehicle in front of her, that a car honked to pass her, and that as she returned to the right hand lane, there was a series of 'sparks underneath the car like something fell * * * like something in front was dragging. * * * like a big hunk of metal suddenly hitting the ground.' Hendley stated that the sparks were 'strong' ones, not like the little spark from a dragging chain. He also said that Mrs. Elmore started 'fishtailing,' that as the 'fishtailing' got worse the automobile went over to the wrong side of the road and struck the vehicle of plaintiff Waters, that the 'fishtailing' continued until the collision, and that the impact hurled Mrs. Elmore from her vehicle onto the embankment.

A highway patrol officer investigating the accident shortly after the collision found skid and gouge marks on the pavement on the northbound lane. A gouge mark about 300 feet from the point of impact extended for a distance of some feet, although the precise distance from the gouge mark was not stated. Skid marks continued in a northerly direction from the gouge mark for about 164 feet. The same officer had patrolled the area about an hour before the accident and did not observe any skid or gouge marks at that time.

Mr. Snyder, a mechanical engineer and automobile expert, gave his opinion as to the cause of the gouge marks: 'Well, a piece of metal of some kind from the subject vehicle came against the roadway and scraped against it or gouged into it hard enough to abrade, gouged the roadway, as shown, in that during that process of gouging the roadway in that manner the metal would act the same as if you had put it against a rather large grindstone and sparks would be thrown off from the gouging of the metal against the roadway. It is an abrasive reaction between the metal and the roadway. Now, that would continue as long as the piece were rammed or jammed into the roadway. * * * (A) piece of metal which is gouging into the pavement is gouging by virtue of the fact that some portion is jamming it into it. Now, if it wears a little bit * * * the vehicle passes over that, and then from then on it may just drag lightly, but it won't leave a gouge mark if it is just dragging along. It gouged hard, was forced into the pavement up to the end of the mark, then the mechanics of the situation is that the pressure was relieved at that point by one way or another and there is no further gouge mark.' He did not examine the Rambler and could not tell which particular part had dropped from it although he mentioned a number of parts which could drop. He further testified that whatever piece of equipment may have come loose was in the forward part of the car.

Mr. Ausburn, a licensed engineer, examined the Waters and Elmore vehicles at a wrecking yard apparently eight days after the accident. He made a general examination of the car. At the time he did not have the benefit of the officer's report of the accident or of Mr. Hendley's statement, and he was not looking for a metallic object that might have dragged on the ground. The front end of the Rambler was badly damaged. The right front wheel was bent and the tire was flat. The intermediate rod was torn loose from the idler arm. Many of the parts associated with the steering mechanism were bent and displaced. After the steering mechanism was removed from the Rambler, Ausburn examined the steering box and found in it small metallic particles and particles of a piece of plastic impregnated tape which was similar to the plastic tape labelling the worm shaft of the steering gear.

When Ausburn examined the Rambler, the drive shaft, a metal tube about three inches in diameter, was not attached in its proper place but was in the rear of the Rambler station wagon. The drive shaft was buckled. When shown a photograph taken by the highway patrol officer a few moments after the accident, he stated that an object on the ground about 25 feet from the vehicle was 'probably' the drive shaft from the vehicle.

Ausburn also testified that the drive shaft is attached at the forward and rear portions of the car to universal joints; that if a drive shaft fell down while the car was moving, it would dig into the roadway, make sparks, and cause the rear of the car to lift and to swerve or be thrown around; that normal wear and tear or 'anything the driver did' would not cause a drive shaft to fall down in a space of 2,700 miles; that the cause of a drive shaft falling would be either loose fastenings or a metal failure; and that a drive shaft would not ordinarily be expected to become separated from the car in the accident which occurred.

In response to a hypothetical question assuming that there was heavy sparking underneath the Rambler and that immediately thereafter the Rambler went out of control and crossed to the other side of the highway, Ausburn gave his opinion that the cause of the sparking was 'an undetermined part dropping down and dragging on the highway.'

Ausburn further testified that an experiment he performed with the gear box indicated that the driver of the car would have to exert extra effort in steering the car to overcome the resistance caused by the presence of the tape in the gearbox.

Ausburn also said that his first examination of the Rambler did not disclose evidence of the existence of mechanical defects prior to the accident. After he examined the gearbox, he concluded that there was a defect before the accident in that a foreign matter apparently was present within the gearbox. At the time of trial, after he had seen the pictures of the scene of the accident and learned of the testimony of the heavy sparking, he was of the opinion that there was a second defect prior to the accident, namely, the disconnected drive shaft.

A nonsuit in a jury case or a directed verdict may be granted only when disregarding conflicting evidence, giving to the plaintiffs' evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs' favor, it can be said that there is no evidence to support a jury verdict in their favor. (Estate of Callahan, 67 Cal.2d 609, 612, 63 Cal.Rptr. 277, 432 P.2d 965; Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 120--121, 52 Cal.Rptr. 561, 416 P.2d 793; Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768.)

'A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.' (Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900, 13 A.L.R.3d 1049; Vandermark v. Ford Motor Co., 61 Cal.2d 256, 260--261, 37 Cal.Rptr. 896, 391 P.2d 168.) Similarly, a retailer engaged in the business of distributing automobiles to the public is strictly liable in tort for personal...