Dillingham v. Chevrolet Motor Co.

• Decision Date: 22 December 1936
• Docket Number: No. 5955.,5955.
• Citation: 17 F. Supp. 615
• Parties: DILLINGHAM v. CHEVROLET MOTOR CO.
• Court: U.S. District Court — Western District of Oklahoma

17 F. Supp. 615

DILLINGHAM v. CHEVROLET MOTOR CO.

No. 5955.

District Court, W. D. Oklahoma.

December 22, 1936.

Taylor, Muse & Taylor, of Wichita Falls, Tex., and Roe & Roe, of Frederick, Okl., for plaintiff.

Abernathy & Howell, of Oklahoma City, Okl., for defendant.

VAUGHT, District Judge.

C. H. Dillingham, the husband of the plaintiff, on or about the 13th day of August, 1933, purchased a Chevrolet automobile from Murrell Brothers Motor Company, Frederick, Okl., who were regular dealers for said cars. The car, according to the petition of the plaintiff, was used by the said Dillingham and by his wife, the plaintiff in this action, continuously from the date of its purchase until the 20th day of May, 1934, at which time the plaintiff was driving said car to Oklahoma City.

The petition alleges:

"That said car was apparently in good condition and was seemingly running without any trouble or defect when she left her home in Frederick, Oklahoma, and until she arrived near the town of Indiahoma, Oklahoma, at which time one or more of the wheels on said car which she was driving locked, causing said car to skid for a short distance and then turn over. That when said car turned over, and when plaintiff had been rescued therefrom said car was found to be badly wrecked and damaged, the top and fenders and other parts of said car being badly bent, smashed up and wrecked, and the rear glass on the right hand side of said car was broken and the plaintiff received the injuries hereinafter alleged.

"Plaintiff further represents and shows unto the court that the plaintiff had driven automobiles a great deal before the time of the aforementioned wreck; that she had driven the particular car in question a great deal. That she was a careful and painstaking driver. That at the time of said wreck, she was driving at a moderate rate of speed, not to exceed 40 miles per hour, and was driving in a careful and prudent manner. That the road on which she was driving said car at the time said car began to skid and turn over as hereinbefore alleged was a smooth hard-surfaced road and that there was no reason for said car to skid or turn over as hereinbefore alleged, except for the defect or defects in said car which is hereinafter alleged."

The petition further alleges: "That after said car turned over and when a wrecker was called to remove said car, it was found that the brakes on said car were locked and it was necessary for the person in charge of said wrecker to take a hammer and knock said brakes loose before he was able to move said car. That the locking of said brakes and the skidding of said car as hereinbefore alleged caused said car to turn over. That prior to said accident the said plaintiff nor her husband had any information or notice that said car was equipped with defective brakes and in truth and in fact said defects or defect connected with said brakes was or were hidden or latent defects and could not be discovered by her or them until such time as said brakes did lock and cause said car to skid and turn over as hereinbefore alleged."

The petition further, in specifically enumerating the defects in said brakes, states:

"(a) That said brake shoes were designed and constructed of different length, thereby causing the brake pressure to be unequally distributed on the brake drum or drums, and causing said brake or brakes to grab or lock. (b) That said articulating links were improperly designed, constructed, and attached to said brake shoes, thereby causing said brake shoes to distribute unequally the pressure on said brake drum or drums. (c) That the cam shaft and brake cam were improperly designed, constructed, and inserted in said wheel or wheels and said brake or brakes, in that no method of lubrication was provided, thereby permitting said brake cam shaft or shafts to freeze or stick in the wheel where inserted, thereby permitting the brake cam or cams to keep pressure on the brake shoe or shoes, thereby causing the brake or brakes to lock. (d) That said brake cam shaft and brake cam or shafts and cams were improperly inserted in the rear wheels of said automobile in that the same were inserted below the axle and said brake cams were so attached that when pressure was applied on the brake pedal that said brake cams rotated in such manner as to centralize the brake pressure on one end only of each of the brake shoes in said wheel, thereby causing said brake shoes to grab and have a tendency to lock said wheel. (e) That the brake linings designed, constructed, and inserted in said automobile were improperly designed, constructed, and furnished in that the same was manufactured of a kind and character of material that would grab when coming into contact with the brake drum, thereby causing the brakes of said automobile to lock. (f) That the brake linkage of said automobile consisting of the brake pedal and all brake rods and shafts leading therefrom to the brake levers attached to said brake cam shafts were so designed, constructed, and attached on said automobile that they were and did become loose on said automobile and swing and vibrate in such manner as to turn the brake cam shaft or shafts and brake cam or cams aforesaid, thereby applying said brake or brakes without pressure being placed on the brake pedal by the driver of said automobile.

"That such defective designing, constructing, and assembling of said automobile and all of the brakes on the same and the aforesaid mentioned parts of said brakes and a combination of one or more of the same was or were such that it or they would and did cause said brake shoes to clamp down on the brake drum or drums of said automobile and could, would, and did so clamp down on the brake drum or drums of said automobile, thereby causing the same to grab or lock, and did cause said car to suddenly skid and turn over, as hereinbefore alleged, and caused the damage to said car as hereinbefore alleged. That said defective brake or brakes as...