Renfro v. J. D. Coggins Co.

• Decision Date: 23 January 1963
• Docket Number: No. 7126,7126
• Parties: Modeana RENFRO, Individually and as Administratrix of the Estate of Robert William Renfro, Deceased, and Bartie Renfro, Individually, Plaintiffs-Appellants, v. J. D. COGGINS COMPANY, a New Mexico Corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 130

378 P.2d 130

71 N.M. 310

Modeana RENFRO, Individually and as Administratrix of the Estate of Robert William Renfro, Deceased, and Bartie Renfro, Individually Plaintiffs-Appellants, v. J. D. COGGINS COMPANY, a New Mexico Corporation Defendant-Appellee.

No. 7126.

Supreme Court of New Mexico.

Jan. 23, 1963.

Schall & Fowler, Albuquerque, for appellants.

Lewis R. Sutin, Keleher & McLeod, and Russell Moore, Albuquerque, for appellee.

COMPTON, Chief Justice.

This is an appeal from a judgment for the defendant in a wrongful death action and for damages for loss of personal property.

The complaint alleged that the defendant was negligent in reparing, or in failing to repair, faulty brakes on a used Galion road grader before delivery to the plaintiff, Bartie Renfro, thereby breaching its express and implied warranties of fitness; that such negligence was the proximate cause of the accident in which decedent was killed. The complaint also pleaded the doctrine of res ipsa loquitur. Defendant's answer, among other things, contained a general denied and alleged assumption of risk, no warranties, and unavoidable accident. Other parties claiming damages to real estate as a result of the accident intervened.

At the close of the plaintiffs' case, which included the calling of the defendant's witnesses as adverse witnesses, the court found that the plaintiffs had failed to prove negligence or establish facts from which a reasonable inference of negligence could be drawn, also that the cause of death of decedent was unknown. Defendant's motion to dismiss was granted; judgment was accordingly entered, and this appeal followed.

Appellants contend that the evidence made out a prima facie case of gross negligence, and further that they were entitled to the benefit of the doctrine of res ipsa loquitur since the repair of the brakes on the grader was within the exclusive control of appellee. Appellants also contend that there was no substantial evidence to support certain findings of the court, and that the court erred in refusing to give certain findings and conclusions requested by them.

The following findings and conclusions are attacked as not being supported by substantial evidence:

Findings

'3. On May 7, 1960, plaintiff Bartie Renfro purchased a used Galion road grader from defendant 'as is--where is,' without any express or implied warranties.

'4. On May 14, 1960 said plaintiff took delivery thereof and at his request defendant filled the brake master cylinder with brake fluid and bled and checked the lines; * * * (no objection was made to the balance of this finding).

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'7. That the conduct of defendant was, in all respects, reasonable and prudent and had no relationship to the death of Robert William Renfro.

'8. That the proximate cause of the death of Robert William Renfro is unknown.

'9. That there was no showing by the plaintiffs or the intervenors that any action on the part of the defendant was negligent, or that any action on the part of the defendant was the cause of the death of the decedent.

'10. That there was no negligence proved by the plaintiffs or intervenors against the defendant.

'11. That the cause of death of the decedent was based on mere speculation and not on any proven facts or other reasonable inference drawn by the plaintiffs or intervenors.'

Conclusions

'1. That the plaintiffs and intervenors failed to make out a case against the defendant and therefore are not entitled to recover in this case.

'2. That the plaintiffs and intervenors failed to show any negligence on the part of the defendant.

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'5. The defendant was not negligent in any respect.

'6. The cause of death of the decedent is pure speculation, surmise and conjecture.

'7. The plaintiffs' complaint should be dismissed with prejudice.'

With respect to finding no. 3 appellants state in their reply brief that they have abandoned the question of warranty. Therefore, that finding stands and this court need not consider the substantiality of the evidence to support it.

We review the evidence at some length. On May 7, 1960, the appellant, Bartie Renfro, father of deceased, negotiated with appellee for the purchase of the used grader. On driving it upon appellee's lot he noticed that when the brake pedal was applied it went all the way to the floor and that the steering was rough. He told appellee he would purchase the grader if appellee would repair the brakes and fix the steering. A mechanic of appellee testified that he had been told by appellee to repair the brakes; that the filled the master cylinder, bled the line and put in some hydraulic oil. The mechanic then drove the grader around the yard testing the brakes and they were functioning properly. He also visually inspected the brake linings for leaks and found none. This was done on May 14, 1960. Thereafter, on the same day, appellant, Bartie Renfro, came in and took delivery of the grader at which time both he and the mechanic noticed a leak in the transmission but Renfro accepted the fact and was not disturbed by it.

Bartie Renfro testified that after taking delivery of the grader he drove it from appellee's yard to his home having 5 or 6 occasions to use the brakes on the way that the pedal was hard to push down but this was not unusual and the brakes worked all right. The following morning he drove the grader from his home in south Albuquerque to Highway 10 and from there several miles toward the scene of the accident; that he applied the brakes 2 or 3 times during this trip and they were functioning properly; that the deceased, Robert William Renfro, 18 years old, driving a pickup, traded places with his father and took possession of the grader a mile or two south of the intersection of Highways 10 and 44; that about a mile and a half up the slightly graded road deceased stopped the grader at a store while his father purchased cigarettes. At that time the brakes were working properly.

Several miles farther up the road Bartie Renfro, traveling somewhat faster than the grader, pulled the pickup to the side of the road to give his son 20 or 30 minutes to get well ahead. While waiting he heard a noise, looking up he saw the grader coming backwards down the hill, traveling between 50 and 55 miles per hour with the deceased standing up with both hands on the steering wheel, and looking backwards as though in an attempt to control the grader. Bartie Renfro immediately turned the pickup around and drove alongside the grader for about a quarter of a mile. During this time he observed the handbrake pulled all the way back to the seat. After passing the grader to warn traffic below, appellant looked through his rear view mirror and saw his son lying in the center of the road. The son died a few minutes later. The grader came to a stop 15 to 18 feet off of and below the road where it had run into a house.

The grader was not examined by Bartie Renfro until several weeks after the accident and there was no direct evidence of a failure of the brakes. There was, however, evidence that the deceased at times had driven this type of equipment but was not an experienced operator of it; that the grader had 8 forward speeds; that an almost complete stop was required in order to shift gears traveling upgrade; that if in shifting gears the operator missed a gear the grader would start a backward motion. A part of the transmission housing found in a puddle of oil in the middle of the road was admitted into evidence for the purpose of showing the point at which the grader ceased its forward motion, and as circumstantial evidence as to how the backward motion began.

Bartie Renfro testified that he did not know what happened except what he observed, and that he knew of no specific acts of negligence of the appellee. His position, however, broadly stated, is that the point in the road where a part of the transmission housing lay in a puddle of oil indicates where the crankcase broke and the grader began its backward motion starting the chain of events leading to the death of deceased; that since the handbrake was observed pulled back to the seat is must be presumed that deceased first applied the footbrake and that the footbrake failed; that had the footbrake not failed the accident would not have happened; that the footbrake would not have failed in the...