Heilig v. Studebaker Corporation
| Decision Date | 21 June 1965 |
| Docket Number | No. 7868.,7868. |
| Citation | 347 F.2d 686 |
| Parties | Josephine HEILIG, Appellant, v. STUDEBAKER CORPORATION, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert J. Woolsey, Tulsa, Okl., (Farmer, Woolsey, Flippo & Bailey, J. C. Farmer, Otho Flippo, J. B. Bailey, Lawrence A. G. Johnson, Richard L. Harris, Tulsa, Okl., on brief), for appellant.
Joseph A. Sharp, Tulsa, Okl., (Best, Sharp, Thomas & Glass and Jack M. Thomas, Tulsa, Okl., on brief), for appellee.
Before MURRAH, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit Judges.
Josephine Heilig brought this action against Studebaker Corporation to recover damages for personal injuries. At the trial the jury returned a verdict in favor of Studebaker. Judgment was entered accordingly and Mrs. Heilig has appealed.
In August, 1963, Studebaker was engaged in Tulsa, Oklahoma, in the business of selling new and used automobiles and maintained a service department in connection therewith. On August 19, 1963, Mrs. Heilig and her husband looked at a used 1958 Cadillac automobile, held for sale by Studebaker, with a view to purchasing the same. On August 21, 1963, a salesman for Studebaker turned the Cadillac over to Mrs. Heilig for a trial drive. She drove the car to a service station in Tulsa, where she purchased some gas. She then went to the Grand Hotel in Tulsa and picked up a friend to accompany her on the trial ride. As she approached the hotel she noticed that a light, the function of which was to show when the emergency brake was on, remained lighted when the brake was off. She returned to the Studebaker agency and the defect in the light was corrected. She then drove to a point near the courthouse in Sapulpa, Oklahoma, and there turned around and started back to Tulsa. When she reached a point near the intersection of 15th and Peoria Streets in Tulsa, where Peoria Street slopes toward the intersection, she applied her brakes to avoid contact with an automobile in front of her. She pushed the brake pedal clear to the floorboard, but no braking action resulted. Thereupon, she turned the car off the street and into a retaining wall at a public school site in Tulsa, in order to avoid hitting other automobiles and pedestrians in front of her. As a result of the impact between the Cadillac automobile and the wall, she suffered personal injuries.
From the time the Cadillac automobile was turned over to her for a trial drive, until she applied the brakes immediately before the accident, she used the foot brake to stop the automobile or slow it down on a number of occasions and the foot brake functioned normally. Shortly after the accident, a police officer of the City of Tulsa examined the automobile. He observed that the foot brake pedal was all the way down to the floorboard and that it would not spring back to its normal position when the brakes were not being applied. In the power brake assembly there is a V-shaped element called a relay arm, which moves on a pivot. One end of it is connected to an actuating rod of the power unit and the other end is connected by a clevis pin to a relay rod, which extends from the brake pedal to the relay element. The clevis pin is held in place by a cotter pin. The officer lifted the hood and further observed that the clevis pin was missing, resulting in a disconnection of the linkage and a failure of the foot brake to function when the pedal was depressed.
The salesman who delivered the Cadillac to Mrs. Heilig for the trial drive testified as a witness for the plaintiff. Counsel for the plaintiff offered to prove by such salesman that he had overheard a conversation between Joe Smith, a mechanic employed by Studebaker, and a third person, whose identity the witness had forgotten, in which Smith stated that after the accident he had replaced a pin in the brake system. The offer was rejected by the court on the ground that it happened after the accident. Counsel for Mrs. Heilig predicated such offer on the ground it would contradict answers to certain interrogatories propounded to Studebaker. However, while certain of the interrogatories propounded to Studebaker and its answers thereto were offered in evidence, the answers which counsel for Mrs. Heilig sought to contradict were not offered in evidence.
A mechanic who qualified as an expert on power brake assemblies like the one involved in the instant action, both by special school training and experience, testified that when he replaced a cotter pin to hold the clevis pin in place, he used a new pin. When asked what could cause the cotter pin to come out and permit the clevis pin to fall out and result in a disconnection in the linkage, he testified that it could happen because the ends of the cotter pin were not spread apart to hold it in place, or the head of the pin was too small for the hole in which it was placed, or through the breaking of a bad cotter pin.
Joe Smith was called as a witness for the defendant. He was an automobile mechanic of 26 years' experience. On August 9, 1963, prior to the accident, he installed a reconditioned power cylinder in the foot brake assembly of the Cadillac involved in the accident. He testified that he disconnected the linkage by removing the clevis pin and the cotter pin, which held it in place, and then removed the power cylinder and the linkage still connected therewith by taking out four bolts; that after installing the new power cylinder and rebolting it in place, he reconnected the linkage by replacing the clevis pin and by putting a new cotter pin in the end of the clevis pin to hold it in place; that he spread the ends of the cotter pin apart, so it would stay in place; that after the brake assembly was thus repaired, he bled the brakes to get the air out and then road tested the car; and that the foot brake functioned normally and he had no difficulty in stopping the car by depressing the foot brake pedal.
The service manager for Studebaker also testified that after the power cylinder was replaced and before the accident he drove the Cadillac several times, used the foot brakes to stop for stop signs, and the brakes functioned normally.
On cross-examination Smith was asked if he had a...
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