O'Donnell v. Maves

• Decision Date: 25 January 1968
• Docket Number: No. 8181,8181
• Citation: 103 Ariz. 28,436 P.2d 577
• Parties: Donald O'DONNELL and Margaret O'Donnell, husband and wife, Appellants, v. Keith Kay MAVES and Shirley Sandra Maves, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 577

436 P.2d 577

103 Ariz. 28

Donald O'DONNELL and Margaret O'Donnell, husband and wife, Appellants, v. Keith Kay MAVES and Shirley Sandra Maves, husband and wife, Appellees.

No. 8181.

Supreme Court of Arizona, In Division.

Jan. 25, 1968.

Cavness, DeRose, Senner & Foster, by John W. Rood and Jack Cavness, Patrick W. O'Reilly, Phoenix, William Younger Wood, Glendale, for appellants.

O'Connor, Anderson, Westover, Killingsworth & Beshears, by Ralph Hunsaker, Phoenix, for appellees.

McFARLAND, Chief Justice:

Plaintiffs Donald and Margaret O'Donnell sued defendants Keith and Shirley Maves for injuries received by Mrs. O'Donnell in an automobile accident on October 1, 1960, while she was a passenger in a Pontiac automobile driven by her husband. At the time of the accident, their car was stationary, waiting for a traffic light to turn green, when it was rear-ended by Mr. Maves' 1955 Chevrolet.

The complaint alleged only general negligence. The answer denied negligence, and pleaded unavoidable accident. A Jury returned a verdict for defendants, and plaintiffs have appealed.

The evidence indicated that immediately after the accident the investigating police officer checked the brake pedal on Maves' car, and found that it could be pressed to the floor without operating the brakes; that the officer estimated the speed of the Maves car at thirty miles per hour; that Maves' car had a speedometer reading of over 75,000 miles; that three years before the accident Maves had the brakes relined; that one year before the accident he had the master brake cylinder replaced; that thirty-four days before the accident he had the brakes checked, at which time only about an ounce of fluid had to be added; that twenty-one days before the accident he again had his brakes checked, at which time no fluid was added; that he had made five stops at traffic signals just prior to the accident, at which times his brakes worked normally; that when he first saw the O'Donnell car the stop light ahead of it was red, and Maves was about 800 feet to the rear, traveling at about forty miles per hour; that he applied the brakes lightly several times, and slowed down to about ten to fifteen miles per hour; that when he was about fifty feet from the O'Donnell car he pressed down firmly on the brake pedal, and it went to the floor; that he tried to apply the hand brake, but the plastic handle bent in his hand; that he could not veer to one side because of cars in the other lanes; that Mrs. Maves used the car frequently, and never had any trouble with the brakes; that Maves' brother-in-law used it for six weeks while Maves was out of town two or three months before the accident, and had no trouble with the brakes at that time.

Another police officer, properly qualified, stated his opinion that the physical facts of the accident indicated that Maves' speed at the time of the impact was ten to fifteen miles per hour. Two mechanics called by plaintiffs, and one called by defendants, testified that the hollow pipe, known as the brake line, which carried the brake fluid from the pedal to the wheels, had a small leak caused by the line's rubbing against the gas tank under the car, which caused the line to lose fluid and thus caused the braking mechanism to fail completely. Defendants' mechanic testified the failure of the brakes was sudden, and the conditions causing the failure were not such as would give the driver notice of the leak.

Plaintiff assigns as error the trial court's refusal to give plaintiff's requested instruction on res ipsa loquitur.

In Capps v. American Airlines, Inc., 81 Ariz. 232, 303 P.2d 717, we said:

'The doctrine of Res ipsa loquitur has been clearly defined by this court in many prior cases. We have said that the conditions necessary for the application of the doctrine are:

(1) The accident must be of a kind which ordinarily does not occur in the absence of some one's negligence;

(2) It must be caused by an agency or instrumentality within the exclusive control of defendant;

(3) It must not have been due to any voluntary action on the part of the plaintiff;

(4) Plaintiff must not be in a position to show the particular circumstances which caused the offending agency or instrumentality to operate to his injury. (Emphasis supplied.)'

In view of this clear statement of conditions, we agree with plaintiff that the doctrine is applicable to the usual rear-end collision. Pickwick Stages Corporation v. Messinger, 44 Ariz. 174, 36 P.2d 168; Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 211 P.2d 905.

We have held that res ipsa loquitur gives rise to an inference, not a presumption. Yoo Thun Lim v. Crespin, 100 Ariz. 80, 411 P.2d 809; Drumm v. Simer, 68 Ariz. 319, 205 P.2d 592.

In Starkweather v. Conner, 44 Ariz. 369, 38 P.2d 311, we said:

'* * * There is a great difference between an 'inference' and a 'presumption.' An inference is a deduction drawn from certain facts by the reason, while a presumption is an arbitrary conclusion which the law says must be drawn from certain facts, * * *'

Perhaps the clearest explanation of the doctrine appears in Fink v. New York Central R. Co., 144 Ohio St. 1, 56 N.E.2d 456:

"* * * (R)es ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.' * * * Where the defendant offers evidence tending to meet and explain the circumstances surrounding the occurrence, it is the duty of the court, when requested so to do, to submit the question to the jury under proper instructions. The weight of the inference of negligence which the jury is permitted to draw in such case as well as the weight of the explanation offered to meet such inference, is for the determination of the jury.'

Our rule is practically the same:

"* * * It is generally agreed * * * that the burden of proof is not upon the defendant, and that he is required to do no more than to introduce evidence which, if believed, will permit the jury to say that it is as probable that he was not negligent as that he was. Against this evidence must be balanced the inference of negligence to be drawn from the circumstances of the case, Which has weight so long as reasonable men may still draw it from the facts in evidence. * * *" (Italics ours.) Tiller v. Von Pohle, 72 Ariz. 11, 230 P.2d 213.

The amount of evidence required would be described more accurately by saying that it must be sufficient--if believed--to justify the jury in finding for defendant.

Despite the considerable confusion in various jurisdictions, our views are clear, and with the exception of one sentence in Drumm v. Simer, supra, they have been consistent. The sentence referred to is:

'* * * When rebutted, the doctrine no longer applies and the burden then shifts to the plaintiff to prove negligence * * *'

We consider this statement made in Drumm, supra, was improvident, and reaffirm Tiller, supra. To put it simply, the inference does not vanish (as do presumptions) with the introduction of counter-evidence; it remains as a part of plaintiff's case, to be given such weight as the jury decides to give it in the light of the counter-evidence. If,...