Martin v. Penn
| Decision Date | 20 January 1964 |
| Docket Number | No. 5665,5665 |
| Citation | 134 S.E.2d 305,204 Va. 822 |
| Court | Virginia Supreme Court |
| Parties | JOHN NICK MARTIN v. BONNIE PENN. Record |
R. Reid Young, Jr. (Douglas K. Frith; Young, Kiser & Frith, on brief), for the plaintiff in error.
A. L. Philpott and L. Dale McGhee (Philpott & McGhee, on brief), for the defendant in error.
Bonnie Penn, while riding as a passenger in a pickup truck owned and operated by John Nick Martin, was injured when the vehicle ran off the road and overturned. Penn filed a motion for judgment to recover damages for his injuries, alleging that the accident was caused by the negligence of Martin in operating the vehicle with a 'defective steering mechanism.' After the parties were at issue there was a trial by a jury which resulted in a verdict and judgment in favor of the plaintiff in the sum of $9,000. We granted the defendant, Martin, a writ of error. The parties will be referred to as they appeared in the court below.
The defendant concedes that at the time of the accident the plaintiff was a 'paying passenger' in the vehicle and the sole issue on the appeal is whether the evidence adduced was sufficient to warrant the jury in finding that the defendant was guilty of negligence which was a proximate cause of the accident and the plaintiff's injuries.
The accident occurred about 6:15 a.m. on June 23, 1960, while Martin was driving the vehicle, a 1953 pickup truck with Penn as a passenger therein, along Highway 58 in Henry county. According to the plaintiff, Penn, as the truck was proceeding at a speed of from 35 to 40 miles per hour, he noticed that the driver, Martin, was 'having some difficulty' in steering the vehicle; that Martin remarked, 'Something done happened to my truck,' and that shortly thereafter the vehicle ran off the road and overturned. Prior to that, Penn said, the truck had been driven in a 'pretty careful' manner.
On cross-examination of the plaintiff it developed that at a previous hearing he had admitted that just before the accident the defendant had done nothing 'wrong' in the operation of the vehicle.
A State trooper who came to the scene promptly, testified that the cause of the accident was the breaking of the 'drag link,' a part of the steering mechanism, which rendered the vehicle uncontrollable. He found that the detached part of the steering mechanism had fallen onto the pavement and gouged out a mark extending about 105 feet. This witness found that the truck carried an inspection sticker which would have expired on July 31, 1960.
The plaintiff introduced as witnesses five automobile mechanics with various years of experience, ranging from twelve to thirty-four years, who testified that they had examined the broken steering mechanism and found that the break was caused by excessive wear. They further testified that because of the wear on the mechanism there would have been an abnormal or excessive amount of play in the steering wheel which would have indicated to the driver that the steering apparatus was defective.
Alton Prillaman, an automobile mechanic of twenty-eight years experience, testified that the drag link end 'came loose' because it was 'worn out.' He said that the operator would know that the mechanism was defective because the steering wheel would have 'a lot of play' or 'free motion' in it. He also said that 'a layman -- a man who is just driving the vehicle' -- could tell that the mechanism was worn.
Moyer Conner, with a similar experience of thirteen years, testified that the drag link, or 'tie rod end' as he called it, was 'worn excessively' and that this caused it to come apart. He said that because of the 'excessive play in the steering wheel,' which would have resulted from this worn mechanism, one 'accustomed to driving' should have known of the defect.
Harvey Creasey, with a similar experience of thirty-four years, George Dickerson with an experience of twenty years, and Leonard Wood with an experience of twelve years, testified that the worn condiction of the drag link would have indicated to the driver of the truck that the steering mechanism was defective.
The defendant, Martin, testified that as he was proceeding along the highway in the 'usual' manner, 'all of a sudden we just went flopping.' Prior to the accident, he said, he had experienced no 'trouble' with the truck and had no 'knowledge' that 'anything was wrong with the steering' mechanism. He further said that the vehicle carried an inspection certificate which would have expired on July 31 of that year and had been lubricated shortly before the accident.
Ralph Howell, a witness for the defendant, testified that he inspected the truck on January 20, 1960, and attached the usual inspection certificate which was due to expire on July 31; that during the course of his inspection he checked the steering mechanism, including the 'tie rod ends,' and found them free of defects; and that none of these parts was 'loose' or showed evidence of wear at that time. However, on cross-examination, this witness, after examining the broken drag link taken from the defendant's truck, testified that it was in fact 'worn completely out.' He further testified that he had 'known a lot' of such parts to wear out within five months, or even three months, and that the fact that the drag link on the defendant's truck was in good condition at the time of his inspection in January did not 'mean' that is was not 'worn out' at the time of the accident in June.
Willie Shelton, a mechanic in a local service station, testified that he lubricated the truck about two...
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