Markel v. Spencer

• Decision Date: 21 March 1958
• Citation: Markel v. Spencer, 5 A.D.2d 400, 171 N.Y.S.2d 770 (N.Y. App. Div. 1958)
• Parties: Christopher MARKEL, Plaintiff-Respondent, v. Philip R. SPENCER, Defendant, and The Ford Motor Company, Defendant-Appellant. Sharee MARKEL, Plaintiff-Respondent, v. Philip R. SPENCER, Defendant, and The Ford Motor Company, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 770

171 N.Y.S.2d 770

5 A.D.2d 400

Christopher MARKEL, Plaintiff-Respondent, v. Philip R. SPENCER, Defendant, and The Ford Motor Company,

Defendant-Appellant.

Sharee MARKEL, Plaintiff-Respondent, v. Philip R. SPENCER, Defendant, and The Ford Motor Company,

Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

March 21, 1958.

Oviatt, Gilman, O'Brien & Forman, Rochester, for defendant-appellant (Percival D. Oviatt, Jr., Rochester, of counsel).

Falk & Schoenwald, Rochester, for plaintiffs-respondents (Sidney K. Schoenwald, Rochester, of counsel).

Before McCURN, P. J., and KIMBALL, WILLIAMS, BASTOW and HALPERN, JJ.

HALPERN, Justice.

The defendant Ford Motor Company appeals from judgments against it entered upon jury verdicts in actions brought by the plaintiffs for personal injuries. On May 22, 1955, the plaintiff husband was the driver of an automobile, and the plaintiff wife was a passenger in the automobile, while it was being driven along a public highway in the town of Himrod, New York. The automobile was brought to a stop at a highway intersection. While standing still, the plaintiffs' automobile was struck in the rear by a Ford automobile owned and operated by one Spencer, who was originally a codefendant in the action. Both plaintiffs were injured as a result of the collision.

Spencer testified as a witness for the plaintiffs that he had been unable to stop because his brakes did not work. He was driving a 1955 Ford 'Crown Victoria' which he had purchased as a new car only three days before the accident. The seller was identified as the McClure Motor Company of Troy, Pennsylvania. Spencer was himself an employee of the McClure Company and he was therefore able to cover in his testimony the history of the car from the time it reached McClure to the time he purchased it. At the time of the accident, the car had been driven only 240 miles. Spencer had had no previous trouble with the brakes. The only other person who had driven the car was Spencer's wife who had taken it on a trip the day before the accident at which time the car functioned 'very well'. Both Spencer and his wife testified that they had had no accident while driving the car prior to the accident in which the plaintiffs were injured.

Spencer testified that he put his foot on the brake 'slow and easy' in order to stop behind the plaintiffs' car but that the brake pedal went right down to the floor, without the brakes taking hold. As he pushed the brake pedal, he felt something drop past his leg. A search turned up a piece of a broken bolt and the other piece was found the next day under the car mat. The bolt was described as being about 1/2 inch in diameter, with a large head and shoulder and narrowing down in the threaded part. It had broken in half through the threaded part. The braking mechanism was described as follows: the brake pedal was attached to an arm which hung down from a point behind the dashboard; the brake pedal arm was connected by the bolt which had broken, to a rod which was in turn connected to the master cylinder. When the bolt broke, the brake pedal arm was no longer connected to the rod running to the master cylinder and the depression of the pedal, of course, could not activate the brakes.

Spencer testified that he knew that the McClure Company had not done anything to the brake mechanism after receiving the car from the Ford Company, except possibly adjust the brakes. The adjustment of the brakes, of course, did not involve any contact with the bolt connecting the brake pedal arm to the master cylinder rod. Spencer further testified that the car was 'brand new' when he got it and that the entire braking equipment was new.

The pieces of the bolt were not available at the trial; their whereabouts were apparently unknown. Spencer testified that a representative of the Ford Motor Company had taken the pieces of bolt from him two or three weeks after the accident and that he had never seen them again. The attorney for the defendant Ford asserted that 'a bolt' had been sent to the attorney for Spencer in response to his request but the latter refused to agree to this statement and he later asserted without contradiction that 'the last it [the bolt] is known it was delivered to a representative of The Ford Motor Company and from there on if it has been lost track of it is neither Spencer's fault nor these plaintiffs' fault.'

The plaintiffs rested on the foregoing proof, so far as the issue of liability was concerned. The defendant Ford offered no evidence. The court reserved decision on the motions by the defendants for a dismissal and for a directed verdict and sent the case to the jury in a charge to which no exceptions on behalf of the defendant Ford were taken. The jury returned a verdict of no cause of action as against the defendant Spencer but returned a verdict in favor of the plaintiff husband in the amount of $2,500 and in favor of the plaintiff wife in the amount of $1,500 against the defendant Ford. The jury also answered certain special questions submitted to them by the court with reference to the liability of the defendant Ford, in favor of the plaintiffs. The court thereupon denied the motions upon which it had reserved decision and also denied a motion by the defendant Ford to set aside the verdict.

While a notice of appeal in the usual form was served, the attorney for the defendant Ford narrowed the scope of the appeal upon the oral argument. He stated that he desired to raise only the question of whether there was sufficient evidence to go to the jury and he expressly waived any right to a review of the weight of the evidence.

The question is thus sharply presented whether the plaintiffs' evidence was sufficient to make out a prima facie case against the defendant Ford authorizing submission of the case to the jury. In deciding this question, we must be 'guided by the rule that the facts adduced at the trial are to be considered in the aspect most favorable to plaintiffs and that plaintiffs are entitled to the benefit of any favorable inference which can reasonably be drawn from those facts.' Sagorsky v. Malyon, 307 N.Y. 584, 586, 123 N.E.2d 79, 80. Under this rule, we think that the plaintiffs had clearly made out a prima facie case.

The case was correctly submitted to the jury as a case resting upon inferences from circumstantial evidence. Circumstantial evidence may, of course, be sufficient to sustain a finding of negligence. All that is involved in this case is a series of natural and logical inferences from the facts proven.

First, the jury had the right to find that the bolt was defective. The jury certainly was justified in finding that a 1/2 inch bolt in a fixed position in the braking mechanism of a new car, which broke after the car had been driven in a normal manner for only 240 miles, was defective.

Second, the jury had the right to find that the defect in the bolt existed at the time that the car left the possession of the defendant Ford. The evidence sufficiently excluded any tampering with the mechanism or any intervening accident which could have damaged the bolt after it left the Ford plant. Spencer's testimony that the car was 'brand new' when he took possession of it warranted the inference that no accident had taken place while the car was on the way from the Ford plant to McClure's, or while it was in McClure's possession. Certainly, any accident sufficient in force to affect a bolt in the interior of the braking mechanism would have left some external marks. There was direct evidence, in the testimony of Spencer and that of his wife, that no accident had occurred while the car was in their possession.

Third, the jury had the right to infer that the defect was due to the negligence of the defendant Ford. It was self-evident that the defect in the bolt must have been caused by some act or omission in the process of manufacture or inspection. The process of manufacture and inspection had been in the exclusive control of the defendant Ford. The jury was therefore justified in finding that the act or omission was that of the defendant Ford.

That the act or omission was a negligent one was also reasonably inferable. The jury had the right to infer that a new car would not have been turned out with a defective bolt if the required degree of care had been exercised by the manufacturer. The manufacturer was chargeable with knowledge that a defect in the braking mechanism would jeopardize the life and bodily security of any person who used the car or who was in the vicinity of its use, and the manufacturer was bound to use care commensurate with the risk.

The defect involved in this case was of a type which would not ordinarily occur in the absence of negligence. The defendant manufacturer would be the first to assert that the exercise of care in the process of manufacture and inspection is ordinarily adequate to prevent the turning out of an automobile with a defective bolt in a vital place in the braking mechanism. This must be so; if the break-down of the braking mechanism of its automobiles were a common occurrence despite the exercise of the requisite care, the defendant would be chargeable with knowingly turning out automobiles which were a menace to the public. Therefore, under the ordinary principles of circumstantial evidence, the jury was justified in inferring that there must have been some failure of care in the manufacture or inspection of the particular automobile involved in this case.

Finally, it is unquestioned that the breaking of the bolt, and the resulting failure of the braking mechanism, was the proximate cause of the accident in which the plaintiffs were injured. This is expressly conceded by the defendant Ford in its brief upon this appeal.

There is thus a complete chain of logical and natural inferences from the proven facts, leading to the liability of the defendant Ford.

A very similar case was before the...