McNeely v. Harrison, 51729

Decision Date19 March 1976
Docket NumberNo. 51729,No. 1,51729,1
Citation138 Ga.App. 310,226 S.E.2d 112
PartiesF. C. McNEELY v. Russell HARRISON et al
CourtGeorgia Court of Appeals

Kemp & Ratcliffe, Thomas J. Ratcliffe, Jr., Hinesville, for appellant.

Smith, Shepherd & Gary, Loren Gary, II, Wm. H. McWhorter, Jr., Spivey, Carlton, Clarke & Merrill, Milton A. Carlton, Swainsboro, C. Brett Merrill, Jr., Neely, Freeman & Hawkins, Joe C. Freeman, Jr., Andrew M. Scherffius, Atlanta, for appellees.

CLARK, Judge.

This appeal is from the grant of summary judgment to defendants Chrysler Motors Corporation and Sconyers Motors, Inc. in plaintiff's suit for negligence and breach of warranty. The sole issue presented is whether the trial court was correct in ruling, as a matter of law, that the alleged acts of negligence of Chrysler and Sconyers (and the allegedly defective condition of the automobile) were not the proximate cause of plaintiff's injuries and that no issue of fact remained as to the crucial element of plaintiff's action.

The facts of this case are not disputed. Appellee Sconyers Motors sold to co-defendant Ethel Harrison a new 1971 Chrysler automobile. Pursuant to Chrysler's express warranty, Sconyers had made repairs of the vehicle, including the replacement of the clutch and starter.

Two weeks after the above stated repair work, Mrs. Harrison entered the automobile, which was parked in the carport adjacent to her house. Mrs. Harrison placed the gear shift lever in the 'park' position and attempted to start the vehicle, but was unable to do so. She called her husband, co-defendant Russell Harrison, but he too was unable to start the car. At this time, the Harrisons' son, Dickie, arrived at his parents' residence and offered his assistance in attempting to start the vehicle. Dickie Harrison was accompanied by his friend, the plaintiff McNeely, who was not involved in the efforts to start the car.

During this time the automobile was parked with its front end three to four feet from her rear wall of the carport. Mr. Harrison was inside the vehicle trying to get it started. Dickie Harrison was leaning under the hood from the right side of the automobile, attempting the repair work. Mrs. Harrison was standing to the side of the vehicle, and plaintiff was observing from the front of the car.

As the car lights were still operative, it was apparent that the battery was not the source of the problem. Dickie Harrison concluded there was a shortage in the electrical system. He decided the problem might be remedied by jumping or bypassing the solenoid switch, which would allow the current to flow directly from the battery to the starter. Although Dickie was not sure what was wrong with the vehicle, he had seen this method to start other cars.

Dickie placed a metal file or screwdriver in a position to jump the solenoid switch and instructed his father to start the car. When Mr. Harrison turned the ignition, the car lunged forward, pinning plaintiff's legs between the front of the automobile and the carport wall. Seeing plaintiff's predicament, Mr. Harrison put the gear shift lever in the position of reverse and stepped on the gas. The car lunged forward again, pinning plaintiff further against the wall of the carport. Dickie Harrison hurriedly took his father's place behind the steering wheel and attempted to back the car away from his friend. He shifted the gear into the reverse position, but the car again surged forward. The Harrisons then turned the motor off and proceeded to push the vehicle away from the plaintiff.

The automobile was subsequently inspected by two mechanics working for Sconyers Motors. They discovered that a cliplock or cotterpin was missing from the linkage which connected the gear-shift lever on the steering column to the mechanism which changed the gears in the transmission. The absence of the cotterpin prevented the operator from being able to change gears by shifting the gear-shift lever. Regardless of any shift in the gear lever's position, the transmission remained engaged in its previously operated gear, which was drive.

In this Chrysler model, the solenoid switch operated as a safety device which would prevent the car from starting or moving forward when it was not in 'park' gear. Thus, the absence of the cotterpin kept the gear mechanism in drive and the solenoid switch prevented the vehicle from starting. When, however, Dickie Harrison jumped the solenoid switch to remedy what he thought was a shortage in the electrical system, the safety device was circumvented and the car lunged forward into the plaintiff. The transmission remained in drive during the subsequent efforts to back the car away from the plaintiff, causing him additional injuries.

Plaintiff brought suit against Russell Harrison, Ethel Harrison, Chrysler, and Sconyers Motors. (The action against the Harrisons, asserting common law negligence, is not involved in this appeal). Plaintiff alleged a breach of the implied warranty of merchantability against both Chrysler and Sconyers. He further alleged that Chrysler was negligent in its design, manufacture,...

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11 cases
  • Anderson v. Nissei ASB Mach. Co., Ltd.
    • United States
    • Arizona Court of Appeals
    • December 23, 1999
    ...the press was defective when it was sold, as there was in the case before us. See Jones, 37 F.3d at 426. ¶ 30 McNeely v. Harrison, 138 Ga.App. 310, 226 S.E.2d 112, 115 (1976), is distinguishable because the modification to the automobile to make it lurch forward, pinning the plaintiff betwe......
    • United States
    • Georgia Court of Appeals
    • June 9, 2000
    ...or be the proximate result of the manufacturer's original design which did not exist at the time of injury."); McNeely v. Harrison, 138 Ga.App. 310, 313, 226 S.E.2d 112 (1976) ("The circumvention of the safety device, designed to prevent the type of injury which occurred, constitutes an unf......
  • Wyatt v. Winnebago Industries, Inc.
    • United States
    • Tennessee Court of Appeals
    • December 2, 1977 misuse or to proximate cause. Finally, we note that defendants also rely heavily on the recent Georgia case of McNeely v. Harrison, 138 Ga.App. 310, 226 S.E.2d 112 (1976), on the issue of proximate cause. The facts of that case admittedly differ in no material respect from those in the i......
  • Talley v. City Tank Corp.
    • United States
    • Georgia Court of Appeals
    • March 9, 1981
    ...judgment properly granted as to any theory of recovery based upon the "negligent" design of the cable mechanism. McNeely v. Harrison, 138 Ga.App. 310, 226 S.E.2d 112 (1976). We turn to the issue of the alleged defectiveness of the truck due to the failure to warn. "Where, ..., (the seller) ......
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