Hackett v. Perron

• Decision Date: 23 May 1979
• Docket Number: No. 79-022,79-022
• Citation: 119 N.H. 419,402 A.2d 193
• Parties: Gloria HACKETT et al. v. Helen C. PERRON.
• Court: New Hampshire Supreme Court

Page 193

402 A.2d 193

119 N.H. 419

Gloria HACKETT et al. v. Helen C. PERRON.

No. 79-022.

Supreme Court of New Hampshire.

May 23, 1979.

Nighswander, Lord, Martin & KillKelley, Laconia (David J. KillKelley, Laconia, orally), for plaintiffs.

Hall, Morse, Gallagher & Anderson, Concord (Charles T. Gallagher, Concord, orally), for defendant.

GRIMES, Justice.

The question in this automobile accident case is whether the trial court erred in awarding a verdict for the defendant based on the defense of sudden and unexpected brake failure. We uphold the verdict.

On October 12, 1975, plaintiff Gloria Hackett was operating a motor vehicle in a southerly direction on Union Avenue in Laconia near the intersection of Union Avenue and Summer Street. The defendant was operating a motor vehicle in a westerly direction on Summer Street. She faced a stop sign at the intersection of Union Avenue. The two cars collided at the intersection. Gloria brought suit against the defendant to recover for personal injuries, and her husband Edward brought suit for loss of consortium. Plaintiffs asserted various grounds for recovery, including defendant's violation of the stop sign, unreasonable speed, improper lookout, lack of control and defective brakes. Defendant denied liability and asserted negligence on the part of plaintiff Gloria and last clear chance.

Trial by the court without jury resulted in a finding that the cause of the accident was the failure of defendant's automobile's braking system and not any of the other causes claimed by the plaintiffs. The court also found that defendant neither knew nor had reason to know of the defective brakes, and returned a verdict for the defendant. The court stated that plaintiffs' expert was reasonably persuasive but that his testimony was limited because he had not examined the braking system of defendant's vehicle. Plaintiffs' exceptions were transferred by Batchelder, J.

At trial, defendant testified that on the day of the accident she had backed her car out of the driveway of her residence on Summer Street, stopping once before backing into the street, and stopping once again in the street before proceeding forward. She said she had no trouble with the brakes at either stop. She further related that as she proceeded westerly approaching Union Avenue and came to the stop sign, she tried to put on the brakes but "had nothing." "I didn't have any brakes. It went right to the floor." "Goodness, no brakes." The car had been inspected about two weeks before the accident and received a sticker. She testified that the car, which she had owned for about seven years and driven some 45,000 miles, had never had any brake trouble.

Before the automobile was moved from the scene, defendant's husband tried the brakes and found that the brake pedal went right to the floor. The car was towed to the garage where it had been inspected, and it was found that the left rear brake cylinder had blown causing a loss of all fluid. The mechanic from the garage testified that "they had blown the rear cylinder on the left side." He stated that "once the cylinder goes, they lose it completely, because it (loses all) . . . brake fluid. Once you push on it, you relieve all pressure. . . ."

Plaintiffs' expert witness had a degree in mechanical engineering, and called himself a consulting automotive engineer with extensive experience in accident reconstruction studies. He had not seen the defendant's vehicle but testified from his general knowledge on the basis of what the mechanic testified had been found when the car was taken to the garage after the accident. He stated that "it is a true fact that if you get a radical brake line failure anywhere in the system, the entire service brake system can fail, no question." He related, however, that in his opinion such a failure could not result from the type of damage described if the mechanic had found that the piston, rubber seal, spring and metal plate were still in the brake cylinder. The mechanic's testimony was that the piston was still in the cylinder, but his testimony could support a finding that the rubber seal and other parts were not still in it. He stated that "the rubber inside pushes right out. . . . It's the outside part, the metal and the rubber." He stated that "the dust cover blows out when the cylinder releases. It pushes out there and lets the fluid all out through."

It ix axiomatic that the trier of fact may reject the testimony of an expert. Vannah v. Town of Bedford, 111 N.H....