Barnett v. Furst

ADAMS, P. J.

This is an appeal from a judgment for $7,500 in favor of plaintiff, after a verdict by a jury, in an action for damages for personal injuries sustained by plaintiff by reason of negligence on the part of defendant.

The evidence, taken in the aspect most favorable to plaintiff, as it must be by this court, shows that plaintiff was employed by defendant to wash the latter’s automobile, and was instructed by defendant to take the vehicle to a place in an alley where there was a slight slope; that plaintiff parked the ear at the designated place and set the brakes; and that while he was engaged in the process of washing the car, and was bending over a bucket in front of it, to rinse his wash rag, the car rolled forward and struck him, and, as a result, he sustained the injuries for which he sought recovery. The neg

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ligence of defendant relied upon by plaintiff was that the brakes on the ear were defective, that defendant was aware of that fact, but did not so advise plaintiff, or warn him.

Defendant here contends that the evidence fails to support the implied finding of the jury that defendant was negligent, but, on the contrary, shows that plaintiff’s own negligence was the proximate cause of his injuries; that the trial court erred in giving certain instructions; and that the verdict is excessive and obviously the result of passion and prejudice.

As for the sufficiency of the evidence to support the verdict, while there is conflict in some respects, defendant himself, called by plaintiff as a witness under section 2055 of the Code of Civil Procedure, admitted that he had trouble with the brakes of his car and had a new brake spring installed which proved inefficient, whereupon he, himself, put in another because the brakes slipped. An automobile mechanic who worked in a service station testified that about three weeks' prior to the accident he worked on defendant’s car, at which time it rolled backward; that he then checked the brakes, and that the spring was weak; that he mentioned to defendant that the spring was weak and should be checked. Another witness, a garage owner, testified as to the type of brakes on defendant’s car, and the manner in which they operated, indicating that the spring might give way at any time. The Chief of Police of Por tola testified that shortly after the accident he talked with defendant about the brakes and that defendant told him that he had trouble with the brake’s releasing, and was going to have the manufacturer repair or exchange the brake assembly. Plaintiff testified that he had taken the car to the place indicated by defendant, had put it in low gear and pulled the emergency brake on—had pulled it out as far as it would go and believed it would hold the car. There is no evidence that defendant told plaintiff that the brake spring was defective or that he warned him regarding the possibility of its slipping, or advised him as to what if any precaution he should take to set the brake to prevent its slipping. This evidence is sufficient to sustain the verdict and judgment as to negligence on the part of defendant; and as for defendant’s contention that the accident was proximately caused by failure of plaintiff to pull the brake handle out to its full extent, since the jury has found to the contrary, it cannot be said that the testimony does not sustain its conclusion.