Dayton v. Palmer

• Decision Date: 12 April 1965
• Docket Number: No. 2,CA-CIV,2
• Citation: 400 P.2d 855,1 Ariz.App. 184
• Parties: Rosalie DAYTON, Appellant, v. Norman Arthur PALMER, Appellee. 56.
• Court: Arizona Court of Appeals

Page 855

400 P.2d 855

1 Ariz.App. 184

Rosalie DAYTON, Appellant, v. Norman Arthur PALMER, Appellee.

No. 2 CA-CIV 56.

Court of Appeals of Arizona.

April 12, 1965.

Rehearing Denied May 11, 1965.

Transmitted to Supreme Court May 26, 1965.

Nolen L. McLean, Tucson, for appellant.

Leonard Everett, Tucson, for appellee.

MOLLOY, Judge.

Plaintiff, Rosalie Dayton, appeals from a judgment based on a jury verdict for defendant in an action to recover damage for injuries sustained by the plaintiff when the car she was driving was stopped at a traffic control signal and was struck in the rear by a car driven by the defendant, Norman Arthur Palmer.

The only ground urged by plaintiff for reversal is that the court erred in submitting to the jury the issue of liability of the defendant. Plaintiff contends that the only verdict possible under the law was in her favor and that the court should have directed a verdict for her on the issue of negligence leaving only the question for the jury of the amount of damages.

The evidence discloses that on December 8, 1961, at approximately 10 or 10:30 p. m., while Mrs. Dayton was driving her car in a westerly direction on East Speedway in Tucson, she brought it to a stop at the intersection of East Speedway and Alvernon in obedience to the traffic light. There were about three cars already stopped in front of her. Plaintiff's car remained in that position for a few seconds until struck from the rear by the car driven by the defendant. The plaintiff's son, who was a passenger in the Dayton car, had a conversation with the defendant immediately after the accident at which time the latter was quoted as having side, 'My brakes failed me.'

Defendant testified that he had experienced on difficulty with his brakes prior to the collision. He had an opportunity to use his brakes a short time before the accident when stopping at the Rib Restaurant for dinner. On this occasion his brakes worked properly. After leaving the Rib Restaurant and in the short distance to the scene of the accident, which was about one-fourth of a mile, defendant had no occasion to use his brakes until his attempted stop immediately preceding the collision with the plaintiff. Defendant further testified that as he approached the intersection where the collision occurred, he saw that the traffic light was red, and started letting his car shift down; that he started putting on his brakes while the Dayton car was a car length or so in front of him; that when he put his foot on the brake 'nothing happened;' that he did not use his emergency brake because there wasn't time and he had no thought of it; and that he struck the rear of the plaintiff's car while traveling fifteen to twenty miles per hour.

At the trial, an automobile mechanic was called as a witness and examined by the defendant concerning the condition of the brakes in question. He testified that he examined and overhauled the Palmer's car brakes on the day following the accident. Portions of his testimony are as follows:

'Q. And what did the examination consist of, Jerry?

'A. Well, first of all, it being equipped with power, I started the engine. The power brake was--the brake was up then, but as soon as I hit it, it went to the floor, so right away I diagnosed the diaphragm and the power unit was ruptured, allowing the engine vacuum to pull the fluid out of the power unit. * * *

'Q. What did you find defective in the power unit or braking unit?

'A. The power diaphragm, the main cylinder diaphragm had ruptured. In other words, it had gotten a hole in it causing the power to escape. This is something that can happen just from a car being old, thirty-five, thirty thousand miles. You can't tell whether they are going bad or not. It just happens.

'Q. From your evaluation of the braking system and from your knowledge, could an individual have any idea that that car, from driving that car, that his brakes were failing?

'A. Not really, no. You would even have less in a car equipped with power brakes.'

On cross-examination by the plaintiff, defendant Palmer testified:

'Q. Now, when had you last checked those brakes or had them checked?

'A. The last time I recall checking the brakes was when I had the car in April.'

The statute which we are primarily concerned with in the case at bar is A.R.S. § 28-952, which provides in part as follows:

'1. Every motor vehicle, other than a motorcycle or a motor-driven cycle, when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold the vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. * * *

* * *

* * *

'C. All brakes shall be maintained in good working order * * *.'

The defendant was required by the provisions of this statute to have his car equipped with brakes adequate to control the movement of and stop and hold the vehicle and to have them maintained in good working order. It is undisputed that the brakes on the defendant's car were not in good working order at the time of the collision. The question presented is whether the defendant is guilty of negligence as a matter of law in violation of the statute containing specific requirements as to brakes or whether the jury under the facts and circumstances could find that defendant was not negligent.

It is often said that the weight of authority supports the view that violation by the driver or owner of an automobile of the statute containing specific regulations as to brakes is negligence per se. Annotation, 170 A.L.R. 611, 661. The authorities divide, however, as to what exactly constitutes a 'violation' of the statute. Some courts have refused to recognize any exceptions where there has been a failure to comply with the specific requirements of brake regulation statutes. Madison v. Morovitz, 122 Conn. 208, 214, 188 A. 665; Nettleton v. James, 212 Or. 375, 319 P.2d 879 (1958).

Probably a majority of American courts have adopted the rule that a violation of a statute which prescribes the care required under given conditions may be excused by the showing that the failure to comply with the statute was without fault. Schaeffer v. Caldwell, 273 App.Div. 263, 78 N.Y.S.2d 652 (1948); Florke v. Peterson, 245 Iowa 1031, 65 N.W.2d 372 (1954); Kohler v. Sheffert, 250 Iowa 899, 96 N.W.2d 911 (1959); Amelsburg v. Lunning, 234 Iowa 852, 14 N.W.2d 680 (1944); Albers v. Ottenbacher, 79 S.D. 637, 116 N.W.2d 529 (1962); 2 Harper & James, The Law of Torts, § 17.6, p. 997. This proposition is stated in affirmative language in 65 C.J.S. Negligence § 19h, as follows:

'Cases holding that a failure to perform a statutory duty may be excused by the circumstances of a particular case are not necessarily inconsistent with the rule that violation of a statute is negligence per se, but may be taken merely as an assertion of the rule that statutes are to be reasonably construed and that a statutory duty may be modified by the peculiar circumstances of a particular case.'

In Lochmoeller v. Kiel, 137 S.W.2d 625 (Mo.App.1940), one of the cases rejecting the theory that any violation of a statute relating to equipment of motor vehicles constituted negligence per se, said:

'Even so, however, there may still be facts and circumstances present in a given case which would excuse a technical violation of a statute or...