Shroder v. Barron-Dady Motor Co.

• Decision Date: 14 December 1937
• Docket Number: No. 34995.,34995.
• Citation: 111 S.W.2d 66
• Parties: SHRODER v. BARRON-DADY MOTOR CO.
• Court: Missouri Supreme Court

111 S.W.2d 66

SHRODER v. BARRON-DADY MOTOR CO.

No. 34995.

Supreme Court of Missouri, Division No. 1.

December 14, 1937.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Bernice Shroder against the Barron-Dady Motor Company, a corporation. Verdict for defendant, new trial ordered, and defendant appeals.

Order reversed and cause remanded, with directions.

Harris & Koontz, of Kansas City, for appellant.

F. M. Kennard and Walter J. Gresham, both of Kansas City, for respondent.

HYDE, Commissioner.

This is an action for $30,000 damages for personal injuries. The jury's verdict was for defendant. Thereafter, the trial court sustained plaintiff's motion for a new trial "on account of errors in instructions." Defendant has appealed from this order granting plaintiff a new trial.

Defendant contends that errors in instructions, or in other matters during the trial of which plaintiff complains, are immaterial because plaintiff failed to make a jury case, and that defendant's demurrer to the evidence at the close of the case should have been sustained. Of course, if plaintiff was not entitled to go to the jury, the verdict for defendant was the correct result and plaintiff should not have a new trial. United Construction Co. v. City of St. Louis, 334 Mo. 1006, 69 S.W.2d 639. We will therefore consider the facts, and reasonable inferences to be drawn therefrom, most favorable to plaintiff's theory of the case in order to determine that question. The negligence alleged by plaintiff was that defendant furnished to plaintiff and her husband an automobile "equipped with defective brakes, in that said brakes operated unevenly upon the wheels of said automobile so that they drew and tended to draw said automobile to one side and out of its course." Plaintiff further alleged that defendant "knew or in the exercise of due care would have known" of such condition; and that this defective condition caused the automobile to swerve into another automobile, while plaintiff's husband was driving the car. Defendant's answer was a general denial and a plea of contributory negligence based upon joint enterprise.

The following facts were shown by plaintiff's evidence: Defendant, a corporation, sold Graham automobiles. Mr. Baker, one of defendant's salesmen, was trying to sell the Shroders a Graham car. Baker brought out a Graham car one Saturday evening, told Mr. Shroder that it was "in perfect condition," and said he could take it on a trip "for a demonstration." Shroder drove it that evening from his home in the southern part of Kansas City to the Union Station where his wife was employed. He then drove the car back to his home and kept it that night. This was a trip of about ten miles. He said that he observed nothing wrong with the brakes that night. He did not remember using the brakes on that trip except in stopping. Early the next morning, Sunday, the Shroders started on a trip to Emporia, Kan. They went by way of highway No. 40 through Kansas City, Lawrence, and Topeka. Mr. Shroder said "on the other side of Kansas City, Kansas, on 40 Highway, and as we started around a sharp curve, I put on the brakes there and I noticed the car would move to the left, just gradually pull to the left. * * * The sharp curve is just out of Kansas City, Kansas, * * * a mile and a half or two miles; that is the first one where I noticed the brakes not working right." He said that the route that he had followed up to that time was up hill and down practically all the way and that there were a number of sharp turns and twists in it. He said he was driving slow and had not previously used the brakes to his knowledge. He said that after that time "any time I would touch the brake it would just gradually pull over," but that he never had occasion to put them on hard, and did not do so. At Topeka, Shroder turned south on a gravel road, and, after driving south about two miles he approached a narrow bridge at the foot of two hills. On the north side of this bridge, there was a "narrow bridge" sign "at the top of a little hill." As plaintiff, proceeding south, reached the "narrow bridge" sign "at the top of the little hill about 300 feet away from the bridge," he saw another car "about 800 feet from the bridge south proceeding north" and "coming fast." Shroder said he was going about 30 miles an hour, but put on his brakes because he was afraid to try to get to the bridge before the other car did. This car was a Chevrolet sedan, driven by Mr. Roberts of Emporia, Kan., and is referred to in the testimony as the Roberts car.

Shroder said that he put on his brakes "at the top of the little hill about 300 feet away from the bridge"; that his "car went to the left over past the center of the road"; and that he immediately "righted the car and got back" on the right side. He further testified: "After Mr. Roberts came through the bridge, I saw that he was in the center of the road there and coming right on, and coming fast. I put on the brakes again and that threw me back over past the center of the road again." Shroder said that this time he "slammed on the brakes"; that he came to a complete stop within 4 or 5 feet; that his car stopped about 3 feet past the center of the road; and that he did not think it went forward at all. The Roberts car, traveling in the center of the road, swerved to its left, and the right sides of the two cars came together. Shroder said that the gravel road was 20 to 25 feet wide and the bridge was about 18 feet wide. He said that when he got straightened out on the right side of the road, after putting his brakes on the first time, his left wheels were two and a half or three feet west of the center of the road. He said that he was then about 175 feet north of the bridge; that the Roberts car was about 25 feet south of the bridge; that his car was only traveling about 18 or 20 miles per hour; and that the Roberts car had not slowed down. When he put his brakes on the second time, the Roberts car was about 40 feet north of the bridge and within 75 feet of his car. The point of the collision was 98 feet north of the bridge. He said that he put his brakes on the second time "because the looks of their car, when it was coming through there, * * * looked to me as though that their car wasn't exactly under control"; that "by him getting over and me going straight the way I was, we could have missed"; and that "I figured if I stopped he would get over on his side and we wouldn't hit." After the collision both cars were about in the center of the highway turned at a forty-five degree angle across it.

Plaintiff's daughter, riding in the rear seat of the car, said that she never noticed anything unusual in the operation of their car and never felt any side movement, but was watching the Roberts car. She said: "I covered my face with my hands when they crossed the bridge. * * * It looked like they were coming right at us." Plaintiff's account of the collision was, as follows: "I was watching the Roberts car, and just as they come through the bridge and were in the center of the road coming right towards us. * * * These people were driving fast and I was watching the fast driving. * * * When they came off the bridge, they started swinging. * * * They were in the center of the road, zigzagging. * * * I threw up my hands and screamed. Mr. Shroder threw on the brakes and that jerked us to one side and the collision occurred. * * * When Mr. Shroder threw the brakes on, it jerked considerably and we stopped dead still."

Plaintiff produced an expert witness to explain the operation of hydraulic brakes. He testified as follows: "A hydraulic brake is a brake system that operates by fluid, and the fluid is controlled by five cylinders, one master cylinder and four wheel cylinders on the late model cars, eight shoes distributed around the four wheels, two in each wheel. * * * The only thing that would make it apply unequally would be a condition of lining, such as grease on it, or maybe a little fluid might have leaked out of the wheel cylinder, that would cause it; or a broken front spring would cause it, or a loose spring. U-bolts would cause the same condition. * * * Grease is generally put in (wheels) by hand. There is only one way that they can put it in, and that is by taking the wheel off and packing the bearings. There are two bearings in a wheel and they are packed with grease. * * * It is supposed to be heavy grease. * * * If it was the proper grease, it wouldn't leak out, and if it was improper, heat would cause it to leak out. * * * They have a felt retainer that is encased by metal on the inside of the wheel that is supposed to hold it back, and if the grease is heavy enough, it can't pass through that, but if it is thin, it will pass it." (He further stated that "the only other foreign matter that could get into a brake, outside of grease or fluid, would be dust or water"; that neither would cause the brakes to operate unevenly; but that loose gravel could cause a car to skid or turn to one side.)

Plaintiff's son, who saw the car the next day after the accident, testified as follows:

"Q. Now, did you look at the brake drums on the front, right front wheels? A. Yes, just the one wheel.

"Q. Tell the jury what you observed there. A. Well, I observed that there was grease on this drum, seemed like it had seeped out of the brake lining or some place and run down and was covered with dust."

Defendant's evidence was that when the car, loaned to the Shroders, arrived from the factory, one of its mechanics "examined the car thoroughly, checked for grease, oil, changed the oil, checked the brakes, steering gear and lights, all connections, rattles and things of that sort"; that the wheels of all new cars are packed with heavy grease at the factory; that it would only work out after running thousands of miles; that, to pack wheel bearings, the wheel must be taken off; that defendant's employees "never...