Swillie v. General Motors Corp.

• Decision Date: 20 September 1961
• Docket Number: No. 296,296
• Citation: 133 So.2d 813
• Parties: Mrs. Joyce King SWILLIE, Plaintiff and Appellee, v. GENERAL MOTORS CORPORATION et al., Defendants and Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 813

133 So.2d 813

Mrs. Joyce King SWILLIE, Plaintiff and Appellee, v.GENERAL MOTORS CORPORATION et al., Defendants and Appellants.

No. 296.

Court of Appeal of Louisiana, Third Circuit.

Sept. 20, 1961.

Rehearing Denied Oct. 11, 1961.

Certiorari Denied Nov. 29, 1961.

Smith & Taliaferro, by Wedon T. Smith, Jonesville, and Stafford & Pitts, by John L. Pitts, Alexandria, for defendants-appellants.

Watson, Blanche, Wilson, Posner & Thibaut, by David W. Robinson, Baton Rouge, for plaintiff-appellee.

Before HOOD, FRUGE and CULPEPPER, JJ.

CULPEPPER, Judge.

In this tort action Mrs. Joyce King Swillie, individually, and as natural tutrix of her two minor children, Pamela Joy Swillie, and Rufus Scottie Swillie, seeks damages for the alleged wrongful death of her husband, Rufus Swillie, who was killed when his loaded gravel truck ran through a T-intersection and thence off the highway into a deep ditch.Named as defendants were General Motors Corporation; Troyce Guice, d/b/a Guice Chevrolet Company and his insurer, Great American Indemnity Company; Natchez Steel Products Company, Inc., and its insurer, Liberty Mutual Insurance Company; Natco Equipment Company, Inc. and Wagner Electric Company.By a vote of nine to three, the jury in the district court awarded judgment in favor of the plaintiff individually in the sum of $30,000, and as .natural tutrix of the said two minor children in the sum in the sum of $30,000, and as natural tutrix said judgment being against only the defendants, Natchez Steel Products Company, Inc. and its insurer, Liberty Mutual Insurance Company.Plaintiff's demands against the remaining defendants were rejected and dismissed.From said judgment the defendants, Natchez Steel Products Company, Inc. and Liberty Mutual Insurance Company, have appealed.Plaintiff has answered the appeal asking that the award in her favor individually be increased from $30,000 to $56,345.

The evidence shows that the accident occurred at about 12:40 P.M. on May 19, 1959 at the 'T' intersection of Sandy Lake Road (Louisiana HighwayNo. 259) with the Jonesville-Harrisonburg Highway (Louisiana HighwayNo. 18) about three miles north of Jonesville, Louisiana.Rufus Swillie was driving his new 1959 Chevrolet truck on which there was installed a dump body and a 'Natchez Double Loadster', which is a patented device manufactured by the Natchez Steel Products Company, Inc., for the purpose of increasing the load capacity.The truck was actually loaded with eleven yards of gravel weighing about 33,000 pounds.As Swillie, traveling in an easterly direction on Sandy Lake Road, approached the Jonesville-Harrisonburg Highway, which said junction as aforesaid forms a T-intersection, the truck did not stop at said Jonesville-Harrisonburg Highway, but ran across and off the same and into a ditch approximately 100 feet east thereof, causing Rufus Swillie to be fatally injured.

It is the contention of the plaintiff that the cause of this accident was the failure of the hydraulic brake system on the truck before it left the road.Plaintiff alleges this brake failure was due directly to the breakage of an improper flare (90 degrees rather than 45 degrees) made in the brake-line to the left rear wheel when the hydraulic brake system of the truck was extended during the installation by Natchez Steel Products Company, Inc. of the 'Natchez Double Loadster' which is an additional or third axle beneath the dump body.On the other hand, it is the contention of the appellants that this accident was not caused by brake failure or by any negligence on the part of Natchez Steel Products Company, Inc. but, to the contrary, was caused by Rufus Swillie either going to sleep or becoming so exhausted that he ran through the intersection and into the ditch.

The first issue for determination by the court is whether plaintiff has shown by a preponderance of the evidence that the accident was caused by brake failure.We have the testimony of two witnesses to this accident.Herschel Collins testified that he observed the truck approaching the intersection at a normal speed and in a normal manner, but he did not actually see the truck leave the highway and did not know of the accident until someone in Collins' car yelled to him that the truck was running on through the intersection.Quincey Dosher, who was traveling north on the Jonesville-Harrisonburg Highway stated that as he approached the intersection he observed the Swillie truck approaching from his left on the Sandy Lake Road at a distance of 200 to 300 yards from the intersection and traveling at a speed of about 35 miles per hour.It apparently appeared to Dosher that the Swillie truck was not slowing down properly for the intersection so he slowed his vehicle, and accordng to Dosher, the Swillie truck did not slow down, or attempt to turn to the right or the left at the intersection, but went across and off the Jonesville-Harrisonburg Highway, sailed through the air as it left the shoulder, and thence traveled about 100 feet where it went straight down into a deep ditch and remained there right side up with the cab of the truck in the bottom of the ditch and the dump body sticking back up the side.Dosher, who was the first person to go to the truck after the accident, testified he observed at that time the brake light on the back of the dump body was on.Perhaps the most important part of Dosher's testimony is that immediately after the accident, and before any effort was made to pull the gravel truck out of the ditch, he observed that the brake line to the left rear wheel was loose from its connection at the wheel end.

State Trooper R. C. McGuffe, who arrived at the scene approximately 20 minutes after the accident, testified that his immediate concern was to try to pull the dump body and its load of gravel back off of the cab of the truck in order to free Rufus Swillie who was caught inside.(The frame of the truck was broken apart so that the cab and dump body were separated.)Trooper McGuffe stated that after two wench trucks arrived at the scene they hooked cables to the rear axle as well as to other parts of the truck and after considerable difficulty succeeded in pulling both the dump body and the cab of the truck out of the ditch.McGuffe did not observe the brake line to the left rear wheel until after the truck had been pulled out, at which time this line was broken.Other facts to which McGuffe testified were that after the accident the truck's emergency brake was pulled all the way back, that the truck did not touch the ground for 11 or 12 feet after it left the shoulder, and that his examination of Sandy Lake Road for a distance of about 300 feet back from the intersection revealed no skid marks or fluid of any kind on the road.

Deputy Sheriff Max Good, who arrived at the scene approximately 25 minutes after the accident, testified that after the two wench trucks had succeeded in pulling the gravel truck out of the ditch they found the body of Rufus Swillie laying over on the seat with his feet sticking out the door on the driver's side and the end of the emergency brake lever, which was pulled all the way back, had penetrated 3 or 4 inches into Swillie's body.Deputy Good further testified that his inspection of the road revealed no skid marks or oil or brake fluid, but that he did observe what appeared to be oil or fluid on the left rear wheel of the dump body.

Glasper Bowman, driver of the wrecker from Babin Motor Company in Jonesville, testified that when he arrived at the scene of the accident, the gravel truck had already been pulled out of the ditch.Bowman did observe that the emergency brake had been pulled all the way back and that the brake pedal was pushed all the way 'to the floor' and stuck in that position.Bowman towed the Swillie truck back to Babin Motor Company where it remained until about one month later when Mr. Robinson, attorney for the plaintiff, and Mr. Alvin Doyle, Jr., expert automotive consultant for the plaintiff, came to Babin Motor Company for the purpose of inspecting the Swillie truck.Bowman testified that on that occasion he assisted Mr. Doyle in removing the brake lines and fittings which were taken by Mr. Doyle for further examination in his laboratory in Baton Rouge.Bowman testified that they were unable to remove the master cylinder of the hydraulic brake system but that from his examination of the cylinder by removing the top and dipping his finger inside he was of the opinion the cylinder was approximately one-half full of fluid.

Both James Swillie, who drove another gravel truck belonging to his brother, the deceased Rufus Swillie, and the plaintiff, Mrs. Joyce King Swillie, testified that they had heard the deceased state on several occasions that in the event of a brake failure on a truck which he was driving he would lay down on the seat rather than attempt to jump from the truck.

Mr. Alvin Doyle, Jr., a witness for the plaintiff, was qualified as an expert automotive consultant, whose principal business was to investigate the causes of accidents.Doyle visited the scene of the accident, examined the truck at Babin Motor Company on about June 18, 1959, which was one month after the accident, and with the assistance of Glasper Bowman removed the brake lines and fittings from the rear axle, taking them into his possession for further study in his laboratory in Baton Rouge.Doyle also examined the entire hydraulic and emergency braking systems of the truck.He testified that at the time of his examination the brake pedal was all the way down, the emergency brake lever was pulled all the way back and locked on, and the shoes of the emergency brake system were cammed tightly to the drum of the drive shaft in the on position.Doyle stated that he found what he identified as brake fluid on the tire and drum of the left rear wheel running outward in radial streaks which indicated to him that the left rear wheel was turning...