Dostie v. Lewiston Crushed Stone Co.

• Decision Date: 27 September 1939
• Citation: 8 A.2d 393
• Parties: DOSTIE v. LEWISTON CRUSHED STONE CO.
• Court: Maine Supreme Court

8 A.2d 393

DOSTIE

v. LEWISTON CRUSHED STONE CO.

Supreme Judicial Court of Maine.

Sept. 27, 1939.

[Copyrighted material omitted.] On Motion from Superior Court, Androscoggin County.

Action by Claire A. Dostie, administratrix, against Lewiston Crushed Stone Company to recover damages for the benefit of the father and mother of Dominique E. Dostie, who was killed in automobile accident. On motion for a new trial, after verdict for plaintiff.

New trial granted on issue of damages unless plaintiff files a remittitur in accordance with opinion.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Berman & Berman, of Lewiston, for plaintiff.

William B. Mahoney, of Portland, and Frank T. Powers, of Lewiston, for defendant.

STURGIS, Justice.

This is an action brought under Section 9, and Section 10 as amended, of Chapter 101 of the Revised Statutes, for the benefit of the father and mother of Dominique E. Dostie, who was instantly killed on August 23, 1938, when the automobile in which he was riding as a guest passenger collided with a truck driven by an employee of the defendant corporation, the Lewiston Crushed Stone Company. After verdict for the plaintiff, the defendant filed a general motion for a new trial.

The collision occurred on the main highway leading from Auburn to Mechanic Falls. As the cars came toward each other, both traveling about thirty miles an hour, and were about one hundred feet apart and each on its own side of the road, the left front tire of the defendant's truck blew out, causing it to swerve to the left and across the highway directly in the path of the automobile in which the plaintiff's decedent was riding. The collision which followed badly damaged the cars and so injured the decedent that he died almost immediately and without conscious suffering. It is stipulated on the record that the truck which was in the collision was owned by the defendant corporation and its servant or agent, who was operating it, was acting within the scope of his employment.

The plaintiff's right of recovery is based primarily on the claim that the defendant corporation was negligent in driving its truck, or allowing its employee to drive it, equipped with a defective tire. There is no convincing proof that, afte corporation can be charged with actual or constructive knowledge of its condition and held liable for the results which followed.

It is negligence to use an instrumentality which the actor knows or should know to be so defective that its use involves an unreasonable risk of harm to others. If the use of the instrumentality threatens serious danger to others unless it is in good condition, there is a duty to take reasonable care to ascertain its condition by inspection. There is a "generally operative duty of inspection where the circumstances are such as would lead a reasonable man to believe that an inspection is necessary, as where the thing used is one likely to deteriorate by previous use or other causes or where the actor has some other reason for suspecting that the article may be defective." Restatement, Torts, Sec. 307. In Section 300 of that Text, it is pointed out that "the actor's negligence lies in his act of using the defective instrument without adequate inspection, not in his omission to perform his duty of inspection."

In Huddy, Automobile Law, Vol. 3-4, p. 127 et seq., the foregoing rule, as applied to motor vehicles, has been laid down in this language:

"Generally speaking, it is the duty of one operating a motor vehicle on the public highways to see that it is in reasonably good condition and properly equipped, so that it may be at all times controlled, and not become a source of danger to its occupants or to other travelers.

"To this end, the owner or operator of a motor vehicle must exercise reasonable care in the inspection of the machine, and is chargeable with notice of everything that such inspection would disclose."

It is common knowledge that defective tires are a frequent cause of blowouts which have a known tendency to cause the vehicle to swerve and become unmanageable, involving great risk of harm to others. They may be and often are caused by accidents for which no responsibility exists and the mere fact that a tire blows out does not, without more, render the owner or operator of the automobile liable. The unsafe condition of the tire must be established and that its condition was known to the owner or operator or could have been discovered by the exercise of reasonable care. Glazer v. Grob, 136 Me. 123, 3 A.2d 895. And it is held that "where they [the blowouts] result from defects in the tire arising from age or wear, there seems little doubt that responsibility should attend the dereliction of the vehicle owner in using such equipment, if the faults would be disclosed on reasonable inspection." Delair v. McAdoo, 324 Pa. 392, 395, 188 A. 181, 183.

There is no dispute as to the history of the tire that blew out in the instant case. The plaintiff introduced evidence which warranted the finding that it was a second-grade and second-hand six ply bus tire, manufactured in 1934, and used on a truck for some months by another owner before the defendant's manager bought it. How old it was or the extent of its prior use was not made known by the seller nor did anyone on the defendant corporation's behalf attempt to ascertain these facts. The tire and others of the same kind and in the same condition, on December 22, 1936, were placed on the four wheels of the defendant's one and one-half ton Ford dump truck which was used generally in hauling and delivering fill, gravel and crushed rock both locally and to distant construction jobs. The road over which the truck traveled to and from the defendant's crushed rock plant located in the outskirts of Lewiston was unimproved and filled with rocks and gravel. The yard of the plant in the vicinity of the crusher was covered with crushed stone and broken rock. Deliveries were made to road and bridge construction jobs in and out of which the truck undoubtedly traveled a rough and rocky road. The loads it hauled were heavy and it may be inferred that it was driven fast on the return trips.

Late in December, 1937, or early in January, 1938, after about a year's use on the truck, the treads on the front wheels were found to be worn down almost to the fabric and the tires were retreaded and reinstalled. They saw enough service through the rest of the winter and following spring and summer to again wear the tread on the right front tire down to the fabric and the rubber on the one on the left front wheel to a thickness of about one-eighth of an inch. This was the condition of these tires when, on August 9, 1938, the manager of the defendant corporation, becoming, as he says, "skeptical" about their condition,...