Markel v. Spencer

Kimball, J.

(dissenting). There is no disagreement as to the proposition that the doctrine of res ipsa loquitur is inapplicable in this case. The majority is of the opinion, however, that there is sufficient circumstantial evidence from which the inference of negligence on the part of the defendant-appellant may he drawn and that the plaintiffs, therefore, made out a prima facie case.

The burden of proof ivas upon the plaintiffs to establish negligence and the mere happening of an accident does not do so. It was the claim of the plaintiffs, as set out in their bill of particulars, that a bolt on the brake cylinder was defective, causing it to break and resulting in a loss of the brake fluid; that the metal itself was defective and that the bolt was improperly installed. No proof was made of such claims. The evidence is that the defendant, Spencer, purchased the car from the dealer; that it had been driven about 240 miles when the accident occurred; that while in the possession of the dealer, the brakes on the car were adjusted; that no accident had occurred to the car while in the dealer’s possession or in the possession of the defendant Spencer. The proof then is that a bolt on the brake arm broke while the car was being operated. There is no evidence as to what the alleged defect was. The bolt was not produced upon the trial. We are not informed as to why the brakes were adjusted by the dealer or what the adjustment consisted of. There is no evidence of the history of this car from the time it left the factory of the defendant-appellant to the time it came into the possession of the dealer. No proof was made that the car when delivered to Spencer was in the same condition as when it left the factory. We have not been told that the alleged defective bolt was the same bolt which was on the car when the Ford Company parted with possession. Whether or not there was a mishap in the transportation of the car from factory to dealer has not been touched upon. It does not appear how the car was transported or what bauds it passed through before the dealer obtained possession. To draw the inference that the accident occurred by reason of the negligence *411 of the defendant-appellant in the manufacture or inspection of the automobile is merely a conclusion based upon speculation and conjecture. The picture would have been much more favorable to the plaintiffs, upon the facts produced, had the car been delivered to Spencer by the Ford Company itself. The cases dealing with foreign substances in cans or packages are not in point. In those cases, it is evident that the foreign substances necessarily had to find their way into the can or package where the packing was done. An examination of the case of Swensson v. New Yorh, Albany Desp. Co. ( 309 N. Y. 497 ) and the case of Pierce v. Ford Motor Co. ( 190 F. 2d 910 , cert. denied 342 U. S. 887 ) discloses that there was proof on the part of the plaintiffs of defects which were traceable to the defendants in the course of repair or in manufacture. In this case, the plaintiffs failed to carry the burden of proving sufficient facts to carry the case to the defendant. The defendant-appellant’s motion should have been granted.

All concur, except McCubN, P. J. and Kimball, J., who dissent and vote for reversal and for dismissal of the complaints in a separate opinion by Kimball, J., in which MoCurn, P. J., concurs.

Present—McCttrN, P. J., Kimball, Williams, Bastow and HalperN, JJ.

Judgments affirmed, with costs.