Ainsworth v. Deutschman

• Decision Date: 23 October 1968
• Citation: 446 P.2d 187,251 Or. 596
• Parties: Carolyn AINSWORTH, Appellant, v. Roy DEUTSCHMAN, Jr., Gloria Deutschman, husband and wife, and Tom Hamlin and Hamlin Motor Company, an Oregon corporation, Respondents, James Marr, Defendant.
• Court: Oregon Supreme Court

Page 187

446 P.2d 187

251 Or. 596

Carolyn AINSWORTH, Appellant, v. Roy DEUTSCHMAN, Jr., Gloria Deutschman, husband and wife, and Tom Hamlin and Hamlin Motor Company, an Oregon

corporation, Respondents,

James Marr, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 3, 1968.

Decided Oct. 23, 1968.

Stanley C. Jones, Jr., and Robert H. Grant, Medford, argued the cause and filed a brief for appellant.

William V. Deatherage and Philip B. Lowry, Medford, argued the cause for respondents Deutschman. On the brief were Frohnmayer, Lowry & Deatherage, Medford.

Ervin B. Hogan, Medford, argued the cause and filed a brief for respondents Tom Hamlin and Hamlin Motor Company.

Before PERRY, C.J., and McALLISTER ^*, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

DENECKE, Justice.

The principal issues upon appeal arise from the plaintiff being injured as a result of defective brakes in the vehicle of defendants Deutschman.

The defendant Roy Deutschman owned a 1959 Thunderbird which was operated by his wife, defendant Gloria Deutschman. Defendant Hamlin Motor Company bought the car used in 1963 and sold it to one Fields. Fields sold it to the Deutschmans about three months later. The accident occurred after the Deutschmans owned the car about six months. The plaintiff was riding in a vehicle on a through street. Mrs. Deutschman was approaching the through street on an intersecting street. As Mrs. Deutschman neared the intersection she applied her brakes, they failed, and she ran the stop sign, colliding with the vehicle in which plaintiff was riding.

The jury returned a verdict in favor of all defendants, and the plaintiff appeals.

The evidence was that the brakes failed because a link pin was not installed in a solt in the brake shoe. This defect was of long standing but did not cause a brake failure for some time because an aluminum piston performed the same function. Eventually, however, this piston wore out, causing the brakes to fail. There was no evidence that anyone had experienced any difficulty with the brakes prior to the accident. Before the failure, the defect could be detected only if the wheel and drum were removed from the axle. It was never determined who was responsible for the link pin not being installed.

The plaintiff by appropriate procedures requested the trial court to rule that the defendants Deutschman were negligent as a matter of law because they had failed to prove that the brake failure was legally excusable.

ORS 483.444 requires that all brakes be maintained in good order and capable of stopping within certain distances and certain speeds. The brakes on Mrs. Deutschman's car did not comply with this statute. While the general rule of this court is that violation of a motor vehicle safety equipment statute is negligence per se, in Hills v. McGillvrey, 240 Or. 476, 402 P.2d 722 (1965), and McConnell v. Herron, 240 Or. 486, 402 P.2d 726 (1965), we held that under certain circumstances violation is excusable and would not amount to negligence per se:

'* * * We hold only that unless a party can show impossibility of compliance, regardless of the degree of care, or that his failure to comply with the statute was caused by circumstances over which he had no control, he has not tendered a valid excuse. * * *' McConnell v. Herron, 240 Or. 486, 493--494, 402 P.2d 726, 730 (1965).

We more recently restated the rule:

'* * * In McConnell we relaxed this rule (of absolute liability) slightly and held that such a violation could be excused if it was impossible to comply with the statute by the exercise of the highest degree of care. * * *' Pozsgai v. Porter, Or., 435 P.2d 818, 819.

As stated, the evidence in this case is that the defect could not be discovered unless the wheel and drum were removed from the axle. The evidence also was that defendants had no specific reason to remove the wheel and drum. Prior to the accident the brakes worked properly; there was no noise and no evidence of any leakage of the brake fluid. The vehicle had had periodic lubrication service which did not reveal and would not have revealed the defect.

We hold that the jury could find that the defendants Deutschman, exercising the highest degree of care, could not have discovered the defect and, therefore, are excused from violating the safety equipment statute.

McConnell v. Herron, supra, 240 Or. 486, 402 P.2d 726, states that the defendant must show it was impossible to discover the defect. As plaintiff points out, it is literally possible to discover any defect. However, if the McConnell case requires literal impossibility of discovery, it is imposing a standard more rigid than that imposed in Nettleton v. James, 212 Or. 375, 319 P.2d 879 (1958), which McConnell purported to relax. Nettleton v. James, supra, stated as dictum that a latent defect would be an excuse. It defined latent defect as one 'which the usual and well-recognized tests afforded by science and...