Rotche v. Buick Motor Co.

• Citation: 193 N.E. 529,358 Ill. 507
• Decision Date: 17 December 1934
• Docket Number: No. 21627.,21627.
• Parties: ROTCHE v. BUICK MOTOR CO.
• Court: Supreme Court of Illinois

358 Ill. 507

193 N.E. 529

ROTCHE

v.BUICK MOTOR CO.

No. 21627.

Supreme Court of Illinois.

Dec. 17, 1934.

Error to Third Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Marcus Kavanagh, Judge.

Action by Nathan Rotche against the Buick Motor Company and another. Judgment in favor of plaintiff was affirmed by the Appellate Court (267 Ill.App. 68), and named defendant brings certiorari.

Reversed and remanded.

Howe, Rademacher, Kreamer & Stalling, A. D. Weaver, and Kremer, Branand & Hayes, all of Chicago (Thomas Francis Howe, Henry S. Rademacher, and Edward B. Hayes, all of Chicago, of counsel), for plaintiff in error.

Alfred Roy Hulbert, of Chicago, for defendant in error.

PER CURIAM.

Nathan Rotche brought an action of trespass on the case in the superior court of Cook county against the Buick Motor Company and the Cicero Buick Sales Company, both corporations, to recover damages for personal injuries. The jury found the defendants guilty and assessed the plaintiff's damages at $20,000. After the return of the verdict, the sales company paid the plaintiff $2,500, and obtainedfrom him, to the extent it was concerned, a dismissal of the suit and a covenant not to sue. Motions by the Buick Motor Company for a new trial and in arrest of judgment were denied and judgment was rendered against that company for $17,500. Upon appeal, the Appellate Court for the First District affirmed the judgment. The Buick Motor Company applied to this court for a writ of certiorari, the writ was issued, and the record of the cause is submitted for a further review.

On August 13, 1929, Nathan Rotche, forty years of age, employed as a train guard on an elevated railway in the city of Chicago, bought a five-passenger Buick automobile from the Cicero Sales Company. Twenty-six days later, on September 8, 1929, accompanied by his son, he drove the automobile to Libertyville, a village about twenty-five miles northwest of Chicago. Returning home in the afternoon, he traveled a portion of the distance over a highwayknown as ‘Rand road.’ At a point about a mile northwest of the village of Des Plaines, the automobile, while running at a speed of thirty miles an hour, left the roadway, struck and damaged a concrete culvert, crossed a ditch adjoining the roadway, and came to a stop in a ploughed field at a point about twenty feet beyond the ditch. At rest, the automobile lay on its right side with the front of the car to the northwest. The right front tire and left front wheel were destroyed, the rear axle was bent, the top and sides of the body were damaged, and a clevis connecting a cable with the left front wheel-brake was missing. The automobile was first towed to a garage in the village of Des Plaines. About two weeks later the car was removed to another garage in Chicago. Rotche, the defendant in error, suffered injuries necessitating an operation upon his left leg and foot. As a result the leg is shortened and the foot turned outward.

At the point where the accident occurred, the roadway is eighteen feet wide and built of asphalt. Abutting each of the two sides of the pavement is an earth filling about four feet wide. The surface of the pavement slopes from the center to the sides and the surface is somewhat uneven. A ditch about four feet deep adjoins the roadway. A concrete culvert runs through the roadway, and when the automobile of the defendant in error struck it, a portion at the right end was broken off.

The defendant in error testified that immediately before the accident, he was driving about two hundred feet behind another automobile whose rear stop signal suddenly flashed; that he immediately applied the footbrake of his car, and while its speed was thereby reduced, the car turned to the right, struck the culvert, and plunged through a ditch which he thought was about twelve feet deep; that he had no further recollection of the accident, except that later a person inquired where he wished to be taken; that previously he had experienced no trouble with the brakes on his automobile, although he had driven the car six hundred miles, and when running at a speed of twenty-five miles an hour, he could, after applying the brakes, stop the car within a distance of six or eight feet. The defendant in error admitted that in entering and leaving his garage, he had damaged the fenders and hub caps on the right side of his car.

An attorney at law, related to the defendant in error by marriage, examined the wrecked automobile in the field shortly after the accident. He found the motor cracked, the right front tire exploded, the right rear wheel broken, and a cable and other machinery loose. He testified that his primary concern was not the automobile, but the condition of the defendant in error, and to ascertain the extent of the latter's injuries, the witness visited him at a hospital the same afternoon.

The garage owner who towed the automobile to Des Plaines made no particular examination of it at the time. Three or four weeks later, pursuant to a request made in behalf of the defendant in error, he examined the automobile in the garage in Chicago to which it had been removed. He then found that a clevis and two cotter pins were missing. Certain cotter pins on the left equalizer apparently had not been spread and could readily be removed.

The proprietor of the garage in Chicago made an examination of the car in Des Plaines on September 21, 1929, and found a loose cable. After the car had been taken to his garage, the left front wheel was removed. A clevis was missing. The cotter pins on the right side of the brake mechanism were properly clinched, while the free ends of some on the opposite side were not separated. Nothing in the mechanism underneath the left front fender was broken.

A witness, formerly employed in the repair and sales departments of automobile companies, testified, over objection, that he examined the automobile in the garage in Chicago. He thought he made the examination in December,[358 Ill. 511]1929. He observed that the cable leading to the arm extending from the left front shoe-brake was hanging down and that certain cotter pins were missing. The foregoing is the substance of the evidence introduced by the defendant in error.

On behalf of the plaintiff in error, a deputy sheriff of Cook county testified that he went to the place of the accident shortly after it occurred. He found evidence of tire marks on the right earth abutment for a distrance of twenty feet. These marks apparently resulted from the application of the brakes to the wheels of an automobile. The wrecked car bore evidence of its impact with the concrete culvert.

Evidence was introduced showing the inspections to which Buick automobiles are subjected during the course of their construction. with respect to the brakes on these cars, two men at or near the end of a conveyor inspect all the parts as well as the adjustments. The brake inspectors examine every cotter key or pin to ascertain whether it is properly clinched to hold in place the clevis through which it extends. When any part of an automobile is found missing or defective, the car is tagged and excluded from the conveyor. No record is kept of the automobiles inspected except those found defective and therefore rejected. There was no record that the automobile in question was rejected for any defect in the construction or adjustment of the brakes or for any other defect.

The Buick Motor Company ships its automobiles to be sold to dealers in and about Chicago to its plant in the southwest part of that city. Two employees at this plant inspect the brakes of all automobiles received from the factory at Flint, Mich. They examine the pins and cotter keys in the brake connections and inspect the steering mechanism. Any defect found is reported to the superintendent. After inspection each automobile is tagged and kept for two weeks. The automobile concerning which the present controversy arises was sold and delivered to the Cicero Buick Sales Company on August 5, 1929.

The sales company also maintains a system of inspection. After a new automobile is sold, it is prepared for delivery to the purchaser and this process requires four and one-half or five hours. The inspection includes, among other things, the removal of the wheels, the greasing of the bearings, the oiling of brake connections, and the testing of the brakes by driving the car at a speed of thirty-five miles an hour. A mechanic employed by the sales company who inspected the car in question testified that the brake rods, cables, clevises, and cotter pins were in place and correctly adjusted and that the brakes were in perfect condition. The card which he filled out upon the completion of his inspection was introduced in evidence and showed that he had checked various items among which were the adjustments of the clutch, the pedals, and the brakes. He had an independent recollection of his inspection of the particular car because he permitted it to leave the possession of the sales company without a sufficient supply of gasoline.

Another employee of the sales company also inspected the car. He testified that he found all the cotter pins in place and properly spread or clinched; that the brakes were in the same condition when the car was sold to the defendant in error as when it was received from the manufacturer; that the cotter pin which witnesses called by the defendant in error testified was missing, he actually saw in its proper place; that it held the clevis; and that the ends of the cotter pin were spread or separated.

A motion to direct a verdict for the defendant was made at the close of the plaintiff's evidence and again at the close of all the evidence. Both motions were denied. The contentions of the plaintiff...