Peavey v. Mutual Realty Corp.

YORK, J.

— This is an appeal by defendants from a judgment rendered upon a verdict by a jury. The action was prosecuted by plaintiffs to recover damages alleged to have been sustained by the plaintiff Laura Peavey, and to recover resulting damages alleged to have been suffered by her husband, James Peavey, the other plaintiff, by reason of the alleged negligence of the defendants in- the operation of an automobile. The complaint alleges that the accident which caused the injuries was caused alone by the negligence of the defendants by their failure to properly or at all adjust or set the brakes on said automobile, and by negligently permitting the brakes on said automobile to become and remain old, defective, and unsound to such an extent that when the said brakes were attempted to be set, they did not hold said automobile “from rolling down a decline in the street.”

The answer of defendants denies these allegations and all the material allegations of the complaint, and pleads affirmatively that if the brakes were defective, the defect was unknown to defendants, and by the exercise of reasonable care could not have been discovered by them.

Van Horne Avenue (a public highway in the city of Los Angeles) runs north and south, and at the place of the accident declines to the south on a grade of approximately two and one-half per cent. On the day of the accident, defendant De la Guardia drove said automobile to a point on the easterly side of the avenue and about one hundred feet north

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of the home of plaintiffs. At that point he stopped said automobile and with a companion who was with him entered a house then in the course of construction. A short time after, which defendant De la Guardia estimates to be five or six minutes, said car coasted down the street and struck the plaintiff Laura Peavey, who was standing in front of her home purchasing vegetables at’ a peddler’s wagon. She did not see or hear the approach of the driverless car which caused injuries to her, and for which plaintiffs have sued to recover damages. The defendant De la Guardia testified that before leaving the automobile, he pulled on the emergency brake and set it, and that after the accident he found that it was “horizontal” or “vertical” — or one-half on or set. But he testified positively that the position of the brake lever had been changed since he left the machine. He had not noticed that there was any down grade when he left the automobile and could not account for its moving. He said the brake was strong enough to hold the car. The condition that'the emergency brake was in after the accident without any explanation of its alleged changed position is sufficient evidence to justify the jury in finding that the brake was in* the same position after the accident as when the car was left by De la Guardia. This conclusion is strengthened by the fact that he did not know that there was any decline in the grade of the avenue. The fact that the automobile did not start down the decline immediately may have been as explained by the witness Hinkley, who said he had been in the business of repairing and examining and driving automobiles for more than twenty years continuously. He stated that the brakes would hold the car if they were properly set. That they would stay in a proper condition to hold the car until someone releases them. He said, “If they were in proper condition, there would not be any contact that would release them except by hand.” It appears from his testimony that if the brake bands were heated when set only sufficient to hold the car, and should then cool off, that this might release the brakes sufficiently to allow the car to start down hill. De la Guardia’s testimony was the only testimony that the brakes were pulled entirely on. We find on a review of all the testimony that it was sufficient to justify the verdict. Plaintiffs’ case did not depend on the doctrine of