Gowins v. Merrell

• Decision Date: 07 October 1975
• Docket Number: No. 47080,47080
• Citation: 541 P.2d 857,1975 OK 135
• Parties: Mildred GOWINS, Appellee, v. John L. MERRELL, Jr., Appellant.
• Court: Oklahoma Supreme Court

Page 857

541 P.2d 857

Mildred GOWINS, Appellee, v. John L. MERRELL, Jr., Appellant.

No. 47080.

Supreme Court of Oklahoma.

Oct. 7, 1975.

Bonds, Matthews & Bonds by Albert R. Matthews, Faye Bancroft, Muskogee, for appellee.

Best, Sharp, Thomas, Glass & Warner by Joseph A. Sharp, Jack M. Thomas, Tulsa, for appellant.

BERRY, Justice:

Mildred Gowins, plaintiff, brought this action against John L. Merrell, Jr., defendant, and Tink Wilkerson Chrysler Motor Company (Chrysler), for damages incurred when bus driven by defendant collided with automobile plaintiff was driving. Trial court sustained plaintiff's motion for directed verdict against defendant on issue of liability. It submitted issue of damages and issue of Chrysler's liability to jury. The jury returned verdict of $7,000 for plaintiff against defendant only. Defendant appeals. The Court of Appeals, Division 1, affirmed, and defendant seeks certiorari.

Defendant first contends trial court erred in directing verdict for plaintiff on issue of liability.

In passing upon motion for directed verdict, trial court should consider as true all evidence favorable to party against whom motion is directed, together with all inferences reasonably to be drawn therefrom, and should disregard all conflicting evidence favorable to movant. Gwinn v. Payne, Okl., 477 P.2d 680.

Plaintiff's petition alleged defendant was negligent in (1) failing to maintain such proper care and control of operation of his vehicle upon public highways as a reasonable prudent person would have done under like circumstances, (2) in operating vehicle at speed greater than was reasonable and proper under existing conditions and circumstances, (3) failing to keep such control over vehicle, and operating same at speed greater than would permit him to bring same to full stop within assured clear distance ahead.

Defendant's answer denied allegations of negligence in petition and alleged accident resulted from unavoidable casualty occurring through no fault of defendant.

The evidence indicates plaintiff stopped her automobile behind a truck at a turnpike toll gate. Defendant was driving bus in same lane behind her. The brakes on bus failed and the bus struck rear of plaintiff's car. Plaintiff suffered whiplash.

Defendant testified the bus was owned by a church which had employed him as music director for four or five months prior to accident. He had driven bus on average of twice each month.

He had more opportunities to drive bus than other persons but other people could drive it if they obtained permission. He testified he was not responsible for maintenance of the bus.

Before leaving on trip, he usually checked brakes and horn while bus was in parking lot. On day in question he was taking group of children to Muskogee to sing. At about 4:30 P.M., they boarded bus at church and left. He had no problems with brakes and made one complete stop and used brakes to slow down on numerous occasions. He was traveling about 50 or 55 miles per hour when he saw sign indicating he was one mile from toll gate. He took foot off of accelerator. He applied brakes when he was about one block, or 200 feet, from toll gate. At that time bus was going 20 to 25 miles per hour. The brake pedal went all the way to floor. He pumped brake and attempted to stop bus by shifting to lower gear. He had one foot on brake, one hand on steering wheel, and one hand on gear shift lever.

He used up one half of distance pumping brakes. The bus had an emergency brake but he did not have time to think of it.

He did not remember if lane to left of lane in which he was traveling was open. He was concentrating on stopping bus and only saw cars in front of him and large concrete pillars on right side of road.

He testified he imagined he panicked a little.

Other evidence indicated there was opening in pillars which defendant could have driven through, and he could have swerved to left and gone through other toll gate.

After accident he examined bus and determined he had lost brakes because of hole in brake line which allowed brake fluid to escape.

The area surrounding hole was brown and looked as if it had been burned. The only thing he observed which could have caused heat on the hose was the tail pipe. At that time tail pipe was touching brake line. Chrysler had worked on tail pipe about a week before accident. The accident occurred at approximately 5:20 P.M.

A highway patrolman testified he was parked beside road about 210 feet from turnpike gate. When the bus passed its door was closed but he could see driver through glass. Driver appeared to be pumping brake and he heard noise which sounded like someone hitting floorboard. He saw fluid flying from back of bus. The bus was traveling 20 to 25 miles per hour and the driver looked panicky.

After accident he examined brake line and it was ruptured. The line was grayish black. It was not touching anything and was not more than four inches from tail pipe.

The service manager for Chrysler testified Chrysler worked on bus about a week before accident. They installed new tail pipe and worked on motor.

He examined bus after accident and tail pipe was about 3 to 5 from brake line hose. The brake line was old.

He examined brake line hose on day after accident and observed dark spot on hose which was probably caused by heat. In his opinion even if hose had been touching tail pipe, tail pipe would not have burned hole in brake line in 40 minutes to an hour.

The mechanic who installed tail pipe testified he installed it in original brackets which were 4 to 6 from brake line.

In his opinion tail pipe could have burned hole in brake line if brake line was old and had touched tail pipe for an hour. The tail pipe was only thing in area which produced heat.

Defendant's liability could be based upon theory he was responsible for brake failure and it was proximate cause of accident, or theory he was negligent in controlling vehicle after brake failure occurred.

47 O.S.1971 § 12--301(a) requires every motor vehicle operated upon a highway to be equipped with brakes adequate to control movement of and to stop and hold such vehicle, including two separate means of applying brakes.

We have held owner of automobile must exercise ordinary care to insure it is not in such condition as to become dangerous for use upon public highways, and his failure to use such care, and permitting vehicle to be used upon public highways is negligence. Bush v. Middleton, Okl., 340 P.2d 474.

If owner properly maintains brakes, he will not be liable for damages resulting from unexpected brake failure if he acts as a prudent person after failure occurs. Weaver v. Hoster, Okl., 459 P.2d 614.

Cases from other jurisdictions have adopted various rules with respect to brake failure. See Annotation, Automobiles-Liability-Defective Brakes, 41 A.L.R.3d 9. Some cases hold that where brakes are defective in violation of statute, burden shifts to defendant to produce evidence from which jury could find brake failure was not due to fault of defendant. O'Donnell v. Maves, 108 Ariz. 98, 492 P.2d 1205; Bartlett v. Bryant, 166 Colo. 113, 442 P.2d 425.

Most cases have not distinguished between liability of owner of automobile and liability of operator who is not owner of automobile.

In John W. Simmons Trucking Co. v. Briscoe, Okl., 373 P.2d 49, truck owner's employee took truck to garage and requested specific repair work for brakes without requesting complete check up of braking system. After repairs were made he drove truck onto highway without checking brakes. The first time he applied brakes they failed to work as result of additional defect and truck hit plaintiff's automobile. We held whether driver exercised all reasonable precautions to have brakes in working order was was a question for jury.

In Bryant v. Chasteen, 121 Ga.App. 446, 174 S.E.2d 192, defendant was driving borrowed automobile when brake failure occurred. She testified she had no prior knowledge of any defects. In affirming judgment for defendant, the court distinguished prior cases wherein defendant was owner of automobile and...