Wirthman v. Isenstein

LENNON, J.

This is an action wherein plaintiff sought

and recovered a judgment for damages for personal injuries occasioned by being struck by the automobile of defendant Isenstein, which was at the time being operated by defendant Timber. Defendants have appealed, alleging error in the action of the trial court in giving and refusing certain instructions.

The accident which gave rise to this proceeding occurred when defendant Truber suddenly increased the speed of the machine and swerved on to the left-hand side of the street. This he did, it is claimed, to avoid a collision with another

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machine which was impending because of the failure of his brakes to hold properly. Defendants’ failure to keep the brakes in proper condition was not alleged in the complaint; the testimony as to the defective brakes was relied upon by defendants as an explanation of and defense to the alleged improper driving of the car.

The trial court charged the jury in the words of the state Motor Vehicle Act that “All motor vehicles upon public highways must be provided at all times with adequate brakes kept in good working order.” Defendants insist that this instruction was tantamount to a charge that defendants were under an insurer’s liability for the proper working of the brakes. Plaintiff suggests that even if it be so construed, the instruction was not erroneous. We express no opinion on this point, since the instruction was not, we think, susceptible of the construction placed upon it by defendants. The controlling question in the case was the negligent driving of the.car, and as an element to be considered in determining the existence or absence of negligence defendant raised the question of the defective condition of the brakes.

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It was, therefore, proper for the court to instruct the jury as to the statutory obligation imposed on defendants in regard to maintaining the brakes in good working order. It will be noted that the court did not instruct the jury that a failure to perform the duty defined was in itself negligence, or, if negligence, a ground for recovery by the plaintiff; it merely informed the jury concerning the duty of defendants in regard to the brakes in the language of the statute. The instruction was not given for the purpose of establishing plaintiff’s right to recovery, but was purely incidental to the question as to whether or not, under all the circumstances, the defendants were driving the car negligently, and, in view of the evidence in the case, was properly given.