Eudora Motor Co. v. Womack

• Decision Date: 29 November 1937
• Docket Number: 4-4820
• Parties: EUDORA MOTOR COMPANY v. WOMACK
• Court: Arkansas Supreme Court

111 S.W.2d 530

195 Ark. 74

EUDORA MOTOR COMPANY v. WOMACK

4-4820

Supreme Court of Arkansas

November 29, 1937

Appeal from Chicot Circuit Court; DuVal L. Purkins, Judge; affirmed.

Affirmed.

E P. Toney and Buzbee, Harrison, Buzbee & Wright, for appellant.

W W. Grubbs, Bernard P. Whetstone, Jr., and J. R Wilson, for appellee.

OPINION

BUTLER, J.

Appellee, Ellis Womack, plaintiff below, brought this action in the circuit court of Chicot county for damages for personal injuries and recovered a judgment for $ 10,200, from which this appeal is prosecuted. The complaint stated in substance that appellee was a car salesman for the Eudora Motor Company, a partnership composed of J. J. Keller and Mrs. H. T. Keller, and was working under the orders and direction of J. J. Keller, the manager, on the 5th day of April, 1936, the date of the occurrence from which his injuries resulted. In making sales it was necessary for appellee to demonstrate cars to prospective purchasers. On the date mentioned, the Eudora Motor Company had for sale a slightly used car which had been received by the company in exchange for a new car a day or two before. About noon of said day, Richard Smith proposed to purchase the used car. Appellee entered into preliminary negotiations for its sale, at which time J. J. Keller was not present. He shortly returned to his place of business, however, and there agreed to the terms of sale made by the appellee. The prospective purchaser desired to try out the car, the manager consented to this and directed appellee to go with him, assuring them that the car had been recently reconditioned and was in good shape. Richard Smith and the appellee got in the front seat of the car, Smith at the driving wheel, and drove off at about fifteen miles per hour, and, until they had driven out of the town of Eudora, when appellee told the purchaser that he could test the car at a little higher rate of speed. The speed was accordingly gradually increased up to thirty miles per hour. At this time the car passed a curve on the highway and entered into a straight stretch of road. Up to this time the car functioned well, but when the straight stretch of road was reached the speed was increased to thirty-five miles per hour, and the car began to zig-zag or weave across the road, the driver being unable to control it. One of its wheels left the pavement, but was then gotten back upon the pavement and headed straight ahead. The car turned over severely injuring both the driver and the appellee. After the injury the car was returned to the motor company where it was ascertained that a part of the steering apparatus was defective, which defect was of such nature that an ordinary inspection would have disclosed it, and that this was the cause of the accident, and the resulting injuries to appellee.

The negligence alleged was the failure to use ordinary care in making the inspection and the assurance given by J. J. Keller, which was relied upon by appellee, that whatever defects the car had previously had had been repaired on the day before, and that said car was in good shape and ready for operation. There was a general and specific denial of all of the allegations of the complaint, and the further defense that appellee's injuries resulted from a risk assumed by him, and that he, himself, was negligent, such negligence being a contributing cause to his injuries. The further defense was tendered that the accident was the result of the negligence "of a fellow-employee, or of the man who was driving the car."

It is conceded that if the judgment be affirmed the award of damages is not excessive. It is insisted, however, for reversal and dismissal, (1) that the evidence fails to support an inference that there was a defect in the steering apparatus, the "tie rod," prior to the accident; (2) that there is no evidence to show that appellants failed to exercise due care with respect to discovering and correcting any defects which may have existed, and (3) that, if there was a defect, appellee is not entitled to recover, because his opportunity for discovering such defect was equal to that of appellants. It is further insisted that, if the case should not be dismissed for the reasons noted, the cause should be reversed and remanded for error in giving plaintiff's instructions Nos. 1 and 6.

The grounds urged for dismissal are so related that they may be disposed of under a single discussion. They depend upon the effect of the evidence which, as is usual in cases of this kind, is conflicting, but which must be considered in the light most favorable to the appellee, and the contentions for dismissal must be disregarded unless there be no substantial evidence supporting the verdict.

1. The correctness of this position depends on the competency of the testimony of the witness, R. R. Hardy, the mechanic employed by Mr. Keller to repair the car, and who discovered the defect in the tie-rod. It is argued that his testimony is wholly incompetent as evidence bearing upon the condition of the tie-rod at the time of the accident. This position is taken because of the remoteness of the time after the accident until the repairs were made and the lack of evidence showing that the car, when repaired, was in the same condition as when returned to the shops of appellant company immediately after the accident. This contention is based upon an application of the general rule that proof of the existence of a present condition or state of facts does not raise any presumption that the same condition or facts existed at a prior date. 22 C. J., § 30, p. 92. In developing the contention on this proposition, counsel for appellants argue that before the condition of the tie-rod three weeks after the wreck could be given any probative force to show that the alleged defective condition existed prior to the accident, there must be affirmative evidence that such condition did exist prior thereto, or the existence of the condition subsequent to the accident must be such as to show that in the very nature of things it must have existed prior to the accident and that there was no intervening event to explain such condition. In support of this argument we are cited to a number of our cases, among them L. R. & F. S. Ry. Co. v. Eubanks, 48 Ark. 460, 3 S.W. 808; Butler, Gibb & Co. v. Henry, 48 Ark. 551, 3 S.W. 878, and a number of others, the latest of which is Southwestern Gas & Electric Co. v. May, 190 Ark. 279, 78 S.W.2d 387. While we approve the general rule and recognize the authority of the cases which apply it, we do not think they are controlling in the instant case. To establish the defect something more than presumption is relied upon, for it appears that there is a well connected chain of circumstances tending to establish the defective condition of the car and the particular defect discovered by Hardy. One, Mabry, purchased the car when new from the appellants. It proved unsatisfactory from the first. He brought it back on several occasions, probably as many as twelve times in all, during the time he was driving it and while he was driving it not more than five or six thousand miles. Finally, and about two days before the car was wrecked, Mabry again brought it to the office of the motor company and announced his purpose of getting rid of it and that he proposed to trade it in on a Chevrolet. As the motor company did not wish him to change cars, it made a trade with him for his car and a new Ford which it handled. Mabry testified that the car was hard to steer, was uncertain in its movements when driving at a speed in excess of thirty miles an hour. The substance of his testimony with regard to this matter was that he thought the car unsafe to drive and didn't intend to drive it any longer. At the time of the accident the car was being driven by an experienced driver who described the manner in which the car operated after its speed was more than thirty miles per hour. This witness stated that there was a curve in the road; that he drove safely past it and when just beyond it, and when he had attained a speed of about 35 miles per hour, the right rear wheel went off the edge of the pavement; that he straightened the car up and it began to zig-zag across the road going down the road for about 150 or 200 feet after the car was again on the pavement and before it turned over. Appellee stated that the car began to weave and the right rear wheel seemed to have gotten off the road and come back on it; that the car zig-zagged across the road for a good way before it turned over. There was expert testimony to the effect that a defect such as discovered by Hardy in the steering gear would cause a movement by the car as stated by its occupants at the time of the accident. The wreck, therefore, was caused by one of two things--a defect in the steering gear of the car or...