Kohler v. Ford Motor Company

Boslaugh, J.,

dissenting.

I dissent from that part of the opinion which holds the evidence was sufficient to permit the jury to find that a defect in the steering apparatus of the P'oppe automobile, if one existed, was the proximate cause of the accident and the plaintiff’s injuries.

Much of the evidence in this case relates to the issue *441 of whether the steering apparatus of the automobile was defective. There is very little evidence as to what caused the accident in which the plaintiff was injured. There is no direct evidence as to what caused the accident. What evidence there is as to this issue is circumstantial in nature.

Circumstantial evidence is not sufficient to sustain a judgment unless the circumstances proved are of such a nature and so related to each other that the conclusion reached is the only one that fairly and reasonably can be drawn therefrom. Norcross v. Gingery, 181 Neb. 783 , 150 N. W. 2d 919 . Where several inferences may be drawn from the facts proved, which inferences are opposed to each other but equally consistent with the facts proved, the plaintiff may not sustain his position by a reliance alone on the inferences which would entitle him to recover.

The record shows that the plaintiff and Lois Poppe had worked as nurses’ aides at Crawford, Nebraska, on the day that the accident happened. They drove to Crawford in the morning and at about 3 p.m., left Crawford to return to Chadron, Nebraska. They were about 8 miles west of Chadron on old U. S. Highway No. 20 when the accident happened. Lois, who was 17 years of age, was driving. The weather was clear and the road was dry. The highway was a 2-lane highway, 21 or 22 feet wide, with shoulders. There was a curve about 1% miles west of where the accident happened. Going from Crawford to Chadron the highway curved to the right and turned generally from north to east. From the curve the highway ran in a straight line to where the accident happened. The land was rolling and there were gradual changes in the elevation of the highway.

The trip was without incident until the accident happened. The plaintiff testified that the automobile “started to vibrate” and that it “swerved to the left-hand side of the road.” The plaintiff looked at Lois and saw that she had both hands on the wheel, was looking *442 straight ahead, and had a shocked expression on her face. Neither Lois nor the plaintiff said anything to each other at the time of the accident.

The Poppe automobile had passed another automobile on the curve west of the scene of the accident. The other automobile was being operated by Geraldine K. Licht and was traveling about 45 miles per hour in an easterly direction. The Poppe automobile was going about 50 miles per hour as it ^passed the Licht automobile. There was no other traffic nearby.

As the Poppe automobile returned to its own lane, after passing the Licht automobile, Mrs. Licht noticed that “the rear end wobbled like an empty pickup.” Mrs.. Licht did not notice anything further of an unusual nature until her husband, Walter H. Licht who was sitting beside her, said: “ Watch out for the car ahead!’ ” and “ ‘Slow down.’ ” Mrs.. Licht testified that she noticed the Poppe automobile wobble toward the left of the highway, back to the right, and then into the left ditch. The speed of the Poppe automobile was then about 50 or 55 miles per hour.

Mr. Licht testified that after the Poppe automobile had passed them he noticed that “the back end had a tendency to ride a little to the left-hand side.” Then, as they were proceeding down the highway, he noticed the Poppe automobile “wobbled slightly,” “hit the side of the road a little bit,” and then “veered across the road into the ditch on the other side.” A large cloud of dust was thrown up and the Poppe automobile was. out of their sight for a short time.

Ed Chamberlain, a deputy sheriff, was called to the scene of the accident. When he arrived the Poppe automobile was in the ditch north of the highway resting on its top and upper right side. He saw there were tracks showing that the right wheels of the automobile had traveled for approximately 225 feet on the right shoulder of the highway; that it then veered across the road to the left for a distance of 100 feet; that as it left the north edge of the pavement it veered a little bit more to *443 the east and traveled 65 feet until it hit a rut in the ditch; and that it then rolled end over end for a distance of 60 feet and came to rest. Chamberlain saw that one tire was down.

Everett C. Johnson brought the Poppe automobile into Chadron, Nebraska, after the accident. When he arrived at the scene of the accident the automobile was resting on its top and upper right side in the ditch north of the highway. The tire on the left rear wheel was flat, so he changed this wheel before tipping the automobile over onto its wheels. He then raised the front end of the automobile with the wrecker and towed it into Chadron.

After the accident the tire and the rim that had been removed from the left rear wheel of the Poppe automobile were examined. No puncture or other defect was found in the tire which was a tubeless tire. There was a large dent on the inner flange of the rim where the edge was bent inward.

There had been no mechanical difficulties of any kind with the Poppe automobile. It had never been repaired and had received only normal maintenance. On the day before the accident it had been driven approximately 250 miles on a trip to South Dakota over winding roads, S curves, and pigtail turns with no difficulty of any kind.

There is no direct evidence of any kind that the steering gear on the Poppe automobile “locked up” at the time of the accident or at any other time. The evidence is that the steering wheel turned freely after the accident.

Buddy Taylor and Bobby Unser, expert automobile mechanics with racing experience, were permitted to testify at length about experiments they conducted with a similar automobile. They were allowed to demonstrate before the jury that a tooth deliberately broken from a sector gear, which required a force of 20,000 pounds, and then broken into two pieces and replaced in the gear will, on occasion, cause the steering to lock up. *444 They testified that in driving a similar automobile, with the fragments of a broken tooth contained in the gear, the steering gear locked up 3 times in 50 miles, ultimately causing the automobile to leave the highway.

It is of some significance that in their demonstration it was necessary to turn the steering wheel to its limit and then reverse its rotation in order to produce a lockup. It is also of significance that when the gear is locked so that it will not turn in one direction, the steering wheel may still be turned in the opposite direction.

At the time of the accident in this case, the automobile was traveling on a portion of the highway that was straight. There is no indication that the steering wheel was turned or being turned in the manner in which the fragments would cause the gear to lock up. The evidence is that the automobile first turned slightly to the right, then to the left, and then back to the right.

On the issue of proximate cause the testimony of Taylor and Unser as to their experiments with a similar automobile went no further than to show that it was possible for a fragment from a broken sector gear to’ cause the steering mechanism to “lock up” and prevent the steering wheel from being turned in one driection.

No one knows what caused the accident in this case. The burden of proof was on the plaintiff, and before she could recover she was required to prove that the accident was caused by a defect in the steering apparatus. It was not enough to show that it was possible for a defect to cause the accident.

There are several inferences as to causation that can be drawn from the evidence in this case which are opposed to the inference that the plaintiff relies on and which are at least as strong as the inference that the accident was caused by a defect in the steering gear. The “vibration” described by the plaintiff and the “wobbling” of the rear end described by the Lichts is consistent with the flat rear tire which was found after the accident. Lois P'oppe was a relatively inexperienced *445 driver, and it is possible that overcorrection after driving onto the right shoulder of the highway in a moment of inattention resulted in loss of control.

If the proven facts go no further than to give equal support to two or more inconsistent inferences, the evidence is not sufficient to sustain a finding based upon one of the inferences. Sherman v. Lawless, 298 F. 2d 899 (8th Cir., 1962). See, also, Ford Motor Co. v. Mondragon, 271 F. 2d 342 (8th Cir., 1959), holding that the plaintiff cannot recover where the evidence fails to show that it is reasonably probable, not merely possible, that the accident was caused by the alleged defect, and more probable than any other hypothesis based on the evidence.

One other matter requires mention. Taylor was permitted to testify, over objection, that it was his opinion that a broken sector tooth locked up the steering gear and caused the accident. This was an ultimate fact to be decided by the jury upon the basis of the whole evidence and was not a proper subject for expert testimony in this case. Stillwell v. Schmoker, 175 Neb. 595 , 122 N. W. 2d 538 . Until this case, this court has consistently held such testimony is improper. See. Flory v. Holtz, 176 Neb. 531 , 126 N. W. 2d 686 ; Danner v. Walters, 154 Neb. 506 , 48 N. W. 2d 635 ; Caves v. Barnes, 178 Neb. 103 , 132 N. W. 2d 310 . I also agree with Judge Smith that the testimony was conjectural and superfluous.