Lowenthal v. Backus Motor Co.

• Decision Date: 11 January 1922
• Docket Number: 56.
• Citation: 116 A. 834,140 Md. 33
• Parties: LOWENTHAL v. BACKUS MOTOR CO.
• Court: Maryland Court of Appeals

116 A. 834

140 Md. 33

LOWENTHAL v. BACKUS MOTOR CO.

No. 56.

Court of Appeals of Maryland

January 11, 1922

Appeal from Court of Common Pleas of Baltimore City; Carroll T Bond, Judge.

Action by Leon D. Lowenthal against Backus Motor Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, URNER, STOCKBRIDGE, and OFFUTT, JJ.

Abram C. Joseph and Howard Bryant, both of Baltimore (Daniel C Joseph, of Baltimore, on the brief), for appellant.

Garner W. Denmead, of Baltimore (S. W. Gambrill, of Baltimore, on the brief), for appellee.

URNER J.

The declaration in this case alleges that the plaintiff and his brother being the owners of a Ford Sedan automobile, contracted with the defendant to have a new left rear wheel placed on the car, and that by reason of negligence in the performance of the work agreed upon the new wheel was not safely and securely installed, nor was the material used of a safe and proper kind, and that, while the plaintiff was thereafter riding in the car, which was being carefully operated, on Fayette street in the city of Baltimore, the wheel installed by the defendant came off the axle, and in consequence thereof the automobile was overturned and damaged, and the plaintiff was painfully and permanently injured. In the opinion of the court below the evidence offered at the trial of the case was not legally sufficient to sustain the theory of liability asserted in the declaration, and an instruction to the jury was accordingly granted to that effect. From the judgment entered on the verdict for the defendant thus directed the plaintiff has appealed.

The accident happened while the car was being driven at a moderate rate of speed on a downgrade and was being turned to the left to avoid collision with a group of passengers who were alighting from a street car. This movement was made necessary by the fact that the brakes of the automobile, with which its progress was sought to be arrested, were found not to be in working order. As the automobile suddenly swerved from its direct course in the manner described, the left rear wheel came off the axle, and the car fell on its side. The resulting injuries to the plaintiff consisted of the severing of one of his fingers, the fracture of another, and a bruise on his body; and the upper part of the car was damaged. The wheel which had come off was found to be in good condition. It parted from the axle because the bolts which held it in position had broken. There are six of these bolts, and they fasten the spoke system of the wheel to the flanges of the metal hub. One of these flanges is attached to the hub, and is on the inner side of the wheel when it is in position. The other rests against the outer face of the wooden base from which the spokes radiate. The bolts pass through both flanges, and the spoke base between them and the wheel is thus firmly held in place on the hub, which is locked on the axle, and all revolve together when the car is in motion. The nuts on the bolts passing through the spoke base and the flanges project into the brake drum. Upon investigation after the accident it was discovered that some of the nuts had been sheared off, with the ends of the bolts to which they were attached, and others had come off in fragments. The broken ends of the bolts and the nuts had dropped into the brake drum, while the other parts of the bolts remained in the wheel. It was about six weeks after the wheel was installed by the defendant that the accident occurred. In that period the car had been used daily, and had been driven about 600 miles.

An automobile mechanic testifying as an expert for the plaintiff stated that he had examined the car and the broken bolts, and that, in his opinion, the wheel came off because it "was not turned up tight against the flange" on the hub, and as a result there must have been a "loose playing" between the spoke system and the inner flange, which...