MALONEY v. RATH

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Court of Appeal, First District, Division 1, California.

Kathleen MALONEY, Plaintiff and Appellant, v. Ramona RATH, Defendant and Respondent.

Civ. 23571.

Decided: January 17, 1968

Morgan & Moscone, San Francisco, for appellant. Gassett, Perry & Katzen, San Jose, for respondent.

This is an action for personal injury and property damages arising out of an automobile collision. Plaintiff appeals from a judgment entered on a jury verdict for defendant. She also appeals from the denial by operation of law of her motion for judgment notwithstanding the verdict. (Code Civ.Proc. §§ 629, 963, subd. 2.) We have concluded that the judgment and denial of the motion should be affirmed.

The collision occurred at 2:30 p.m. in the City of San Francisco on December 27, 1962, at the intersection of 19th Avenue and Winston Drive. Plaintiff was driving north on 19th Avenue toward Winston Drive. At the intersection, she turned into the left-turn lane and came to a complete stop to wait for the traffic signal to change. Defendant was also driving north on 19th Avenue toward Winston Drive, traveling approximately 25 miles per hour. She also turned into the left-turn lane, letting her speed drop to about 10 to 15 miles per hour, and then applied the foot brake in order to stop. Her brakes did not respond and the front end of her car collided with the rear end of plaintiff's stationary car.

Defendant, who had been driving to a San Francisco shopping area from Colma, a San Francisco suburb, had applied her footbrake pedal more than once en route and the brakes had functioned. Part of the route was downhill. Defendant had no knowledge of brake trouble until immediately prior to the impact. After the accident, the investigating police officer found that the brake pedal of defendant's car went all the way to the floor and that there was brake fluid under the car.

About three months prior to the accident, on September 15, 1962, Mr. Evanchik of Pete's Chevron Station had completely overhauled the brake system of defendant's automobile, including replacement of the wheel cylinders and brake lining and reinstallation of the brake hoses. On December 12, 1962, two weeks before the collision with plaintiff's car, defendant's automobile was involved in a collision. At that time defendant's husband asked Mr. Evanchik to inspect the automobile completely and to correct any damage thereto. Pete's Chevron Station then kept the vehicle for repairs from December 12 to December 18, and repaired the clutch. The only other servicing of defendant's car prior to the collision with plaintiff's car took place on December 18, 1962, when Pete's Chevron Station changed the oil and replaced a spring in the automobile.

After the collision with plaintiff's car, defendant's automobile was again taken to Pete's Chevron Station. Upon inspection Evanchik found that the brake hose was frayed, that it had a large gash or cut, and that it was damp from brake fluid. In his opinion the hose had either been rubbing against the wheel or had been damaged in the accident.

A brake hose was introduced in evidence purporting to be the brake hose from the right front side of defendant's vehicle. The hose had a hole in it. Defendant's expert witness attributed the brake failure to a hole in the hose in the area of the right wheel which resulted from improper installation of the hose. He and Evanchik both testified that brake hoses are installed in conjunction with new cylinders. Defendant's expert witness also testified that the type of brake failure which had occurred in defendant's car would give the driver no prior warning.

Plaintiff's expert witness testified that the hose had been aligned too close to the upper control arm of the car and that this arm had rubbed a hole in the hose over a period of time. He also testified that an intersection collision could cause the control arm to be out of alignment.

There was also the following expert testimony: that if improper installation caused the damaged condition in the brake hose, the failure might not occur for anywhere from thirty days to six months; that the period of time could vary from 3,000 to 4,000 miles of driving; that a qualified person could see the condition of the hose as it was developing, and could detect any improper installation; and that in inspecting a brake hose or an entire braking system, one would normally look to see if such a condition were developing.

Turning to plaintiff's contention that the court should have granted the motion for judgment notwithstanding the verdict because the evidence was insufficient to overcome the inference or presumption that defendant's negligence proximately caused the rear end collision, we first note that the test of whether the motion should be granted is the same test as on a motion for a directed verdict. (McFarland v. Voorheis-Trindle Co., 52 Cal.2d 698, 703, 343 P.2d 923; Hergenrether v. East, 61 Cal.2d 440, 442, 39 Cal.Rptr. 4, 393 P.2d 164; Knight v. Contracting Engineers Co., 194 Cal.App.2d 435, 442, 15 Cal.Rptr. 194.) Under that test a directed verdict may be granted when, disregarding conflicting evidence, and indulging in every legitimate inference which may be drawn in favor of the party against whom the motion is directed, it can be said that there is no evidence of sufficient substantiality to support a verdict in favor of such party. (McFarland v. Voorheis-Trindle Co., supra; Hergenrether v. East, supra; Beck v. Kessler, 235 Cal.App.2d 331, 335, 45 Cal.Rptr. 237.)

In this case a directed verdict against defendant would not have been proper. The evidence hereinbefore set out raises a question of fact as to whether defendant should have been aware that the brakes were failing and also whether she was negligent in her maintenance and servicing of the automobile. The evidence was such as to support the conclusion that the collision was the proximate result of the negligence of Pete's Chevron Station in improperly installing the brake hose and in failing to detect that condition when the car was being repaired from December 12 to 18, and such as to justify the jury in properly concluding that defendant was not negligent in failing to detect the defective installation. The latter conclusion is warranted by the fact that defendant had had the brakes overhauled about three months before the accident by a mechanic apparently qualified to do such work, and the testimony that defendant had had no trouble with the brakes until immediately before the impact. The jury could likewise properly conclude that the three-month period elapsing between the brake overhaul and the collision was not so long a time as to have required a reasonably prudent person to have the brakes rechecked, especially when the car had been serviced and presumably inspected only two weeks before the accident.

The question of negligence in cases of rear end collisions in essentially one of fact and depends upon the circumstances surrounding the happening of the accident. (Kramer v. Barnes, 212 Cal.App.2d 440, 447–448, 27 Cal.Rptr. 895; Larson v. Solbakken, 221 Cal.App.2d 410, 424, 34 Cal.Rptr. 450; Getas v. Hook, 236 Cal.App.2d 705, 715, 46 Cal.Rptr. 249.) This rule, however, is applied with the concomitant principle that where there is undisputed evidence that the plaintiff's moving or stationary vehicle was struck from the rear by the defendant's moving vehicle, an inference of negligence arises which calls for giving a proper instruction either couched in language that an inference of negligence arises in the absence of any explanation for the collision, or in terms of an appropriate res ipsa loquitur instruction. (Larson v. Solbakken, supra, 221 Cal.App.2d at p. 424, 34 Cal.Rptr. 450; Kramer v. Barnes, supra, 212 Cal.App.2d at p. 448, 27 Cal.Rptr. 895; Getas v. Hook, supra, 236 Cal.App.2d at p. 715, 46 Cal.Rptr. 2499.) Accordingly, the inference of negligence arising from the rear end collision shifts the burden to the defendant to go forward with the evidence explaining or justifying his conduct but does not require the defendant to prove by a preponderance of the evidence that he was not negligent. (Villa v. Shaffer, 242 Cal.App.2d 815, 818, 51 Cal.Rptr. 856; Kahn v. Triest-Rosenberg Cap Co., 130 Cal. 340, 345, 73 P. 164; James v. American Buslines, 111 Cal.App.2d 273, 276, 244 P.2d 503; Patterson v. San Francisco etc. Ry. Co., 147 Cal. 178, 183, 81 P. 531.)

In the instant case the trial court properly instructed the jury that there is an inference that defendant's negligence proximately caused the collision; that this inference is a form of evidence and the jury must find in accordance with it unless there is contrary evidence sufficient to meet or balance the inference; and that if the contrary evidence has as much convincing force as the inference and its supporting evidence, then the jury should find in favor of the defendant on that issue. The trial court also correctly instructed the jury that if they found defendant to have violated Vehicle Code sections 22350 (the basic speed law), 26300 or 26453 (requiring an automobile to have properly maintained, operable brakes), then a presumption of negligence on defendant's part arises that can be rebutted by sufficient evidence that defendant did what may reasonably be expected of a person of ordinary prudence who desired to comply with the law, acting under similar circumstances. (See Alarid v. Vanier, 50 Cal.2d 617, 624, 327 P.2d 897.)

Plaintiff places strong reliance upon the following language from Ponce v. Black, 224 Cal.App.2d 159, 163, 36 Cal.Rptr. 419, 421: ‘In the case of a rear end collision attributable to brake failure, it is incumbent on the owner of the overtaking car, if he would avoid the inference of presumption of negligence on his own part, to show, as a minimum: (a) the cause of the failure; (b) that nothing had occurred to charge him with knowledge of such defect; (c) that nothing in the prior use of the car, attributable to him or known to him, had contributed to such failure; (b) that the vehicle had been inspected and maintenance operations thereon conducted within a reasonable period prior to the accident; and (e) either that the cause of failure was of such a nature as not to have been discoverable by a reasonable inspection within such a reasonable prior period, or that the cause of failure was of such a nature as to have arisen subsequent to such inspection and maintenance within such prior period.'1

It is plaintiff's claim that in the present case the minimum requirements delineated as items (b), (c), (d) and (e) in Ponce have not been satisfied as a matter of law. In answer to this contention we first note that we are not persuaded that these ‘minimum’ requirements set forth in Ponce are a sine qua non in every rear end collision case involving brake failure; they are merely guides for the consideration of the trier of fact in determining whether the owner of the overtaking car has fulfilled his obligation to rebut the inference of negligence arising from the occurrence of the rear end collision and the presumption of negligence arising from the circumstance that the brakes were inadequate. In our view the applicable principles are as follows: With respect to the inference of negligence arising from the fact that a rear end collision occurred, the contrary evidence relied upon to meet or balance the inference must show either a definite cause of the accident not attributable to any negligence of defendant or such care by him as leads to the conclusion that the accident did not happen because of his lack of care but was due to some other cause. (See Dierman v. Providence Hospital, 31 Cal.2d 290, 295, 188 P.2d 12; Roddiscraft, Inc. v. Skelton Logging Co., 212 Cal.App.2d 784, 804–805, 28 Cal.Rptr. 277; Fry v. Sheedy, 143 Cal.App.2d 615, 619, 300 P.2d 242.) As regards the presumption of negligence arising from the violation of statutes providing that motor vehicle brakes be adequate and in good condition and working order, the person who has violated a statute must show, in order to overcome the presumption, ‘that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.’ (Alarid v. Vanier, supra, 50 Cal.2d at p. 624, 327 P.2d at p. 900.)

We think, moreover, that in any event defendant has introduced sufficient evidence to meet the Ponce minimum requirements. There is evidence (a) that the cause of the failure was improper installation; (b) that the defect was not such as defendant should have discovered prior to the failure, since the dangerous condition could develop over a period of time without giving the driver any warning; (c) that defendant's prior use of the car had been normal, and that if the collision of December 12 caused the injury to the brake hose, then Pete's Chevron Station, not defendant, is chargeable with not discovering the damage; (d) that the brakes were inspected and serviced within three months of the accident, which is a reasonable time in the absence of evidence that vehicles of the same type as defendant's automobile need more frequent servicing; and (e) that the cause of failure was not such as to have been discoverable by a reasonable inspection by defendant. It is true that had defendant taken the automobile to some other mechanic, he might have discovered the defect; but there is no evidence tending to show that defendant was negligent in relying on the services of Pete's Chevron Station or that a reasonable person in defendant's position would have had a second mechanic check the car after the brake overhaul or after the collision damage was repaired.

We note, furthermore, that in Ponce there was no evidence whatsoever that the defendant's automobile was serviced or that the brakes were checked at any time prior to the accident. In this case, there is evidence that the brakes were checked within three months of the accident and that the car was taken to a mechanic again to check for damage following the collision of December 12. Thus in this case, unlike in Ponce, there is evidence to support the jury's verdict and, accordingly, the judgment must be affirmed. (See Villa v. Shaffer, supra, 242 Cal.App.2d at p. 820, 51 Cal.Rptr. 856.)

What we have hereinabove stated with respect to the Ponce case is likewise applicable to the claim that the trial court erred in giving an instruction which merely informed the jury to consider whether the factors specified in Ponce were established, instead of telling them that defendant was required to show these factors as a minimum.2 It should also be noted that the court in Ponce was not formulating an instruction to the jury, but rather was stating principles by which to test the sufficiency of the evidence. In the instant case the court correctly instructed the jury on the inference and the presumption of negligence involved in this case and then outlined some of the specific factors which the jury might take into account in determining whether or not defendant has succeeded in meeting the inference or presumption of negligence arising from the rear end collision and the brake failure. Although a more generally phrased instruction telling the jury to take all the circumstances into account in order to determine whether or not defendant was negligent might have been better, we do not think that the instruction given was erroneous. The court correctly instructed the jury on the definitions of negligence and ordinary care and on the meaning of the concept of proximate cause. Accordingly, the jury must have concluded that defendant was not negligent with respect to maintenance of her automobile nor with respect th the collision. The evidence, as already pointed out, supports this conclusion.

The judgment and order appealed from are affirmed.

FOOTNOTES

1.  The Ponce case cites no authority as the basis for this statement. There was no petition for a hearing in the Supreme Court in Ponce.

2.  The instruction given was as follows:‘Now, in determining whether the defendant has met the inference of negligence arising from the happening of the accident and for the purpose of determining whether her violations, if any, of the statutes which were read to you are excusable or justifiable, you should consider whether the evidence establishes among other things, the cause of the brake failure, if you find there was a brake failure, and that negligence on her part played no part in such failure; or that nothing had occurred prior thereto to charge her with knowledge of such defect in the braking system, if any; further, that nothing in the prior use of the car, attributable to her or known to her, had contributed to such failure; or that the vehicle had been inspected and maintenance operations thereon conducted within a reasonable period prior to the accident; or that the cause of the failure, if any, was of such a nature as not to have been discoverable by a reasonable inspection within such a reasonable prior period or that the cause of the failure was of such a nature as to have arisen subsequent to such inspection and maintenance within such prior period.’

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.