APPEAL from the Circuit Court of Williamson County; the Hon.
JOHN H. CLAYTON, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Appellee, Edith Hepler, brought an action for personal injuries against Ford Motor Company and Vogler Motor Company, Inc. Her complaint charged the defendants jointly with liability based upon strict liability in tort and breach of implied warranties of fitness of use and merchantibility with reference to a Ford Falcon automobile designed, manufactured and sold by defendants. Appellee was injured in a one-car accident while operating the Ford Falcon. The jury returned a verdict in favor of appellee and against Ford Motor Company (under the theories of strict liability and breach of warranty) for the sum of $6,250.00. The jury also returned a verdict in favor of Vogler Motor Company, Inc., and against appellee (under each theory). Appellant Ford Motor Company filed a post-trial motion, seeking judgment notwithstanding the verdict, or in the alternative, a new trial. The trial court denied appellant's post-trial motion in its entirety. Appellant Ford Motor Company now brings this appeal from the judgment entered against it by the trial court in accordance with the jury's verdict, and from the trial court's order denying the appellant's post-trial motion.
As a prologue to our opinion, we note that appellee did not file a cross-appeal from the verdict and judgment in favor of Vogler Motor Company, Inc., nor is there before us the question of indemnity between the dealer (Vogler Motor) and the manufacturer (Ford.) The basic issues before us, as raised by appellant Ford Motor Company, focus on the following:
1) whether the evidence was insufficient as a matter of law to support the jury's verdict against Ford Motor Company;
2) whether a new trial should be granted because:
a) the verdict against appellant Ford Motor Company was inconsistent with the verdict in favor of the co-defendant dealer, Vogler Motor Company, Inc.;
b) the trial court admitted certain of appellee's exhibits (photographs) and permitted the testimony of appellee's expert John Essick, over appellant's objections.
In view of our determination in this case, we need not discuss the specific issues raised with regard to a new trial, except as they bear upon the fundamental issue in this case: whether the evidence was insufficient as a matter of law to support the jury's verdict against appellant Ford Motor Company and, whether, therefore the trial court should have granted appellant Ford Motor Company's motion for judgment n.o.v.
• 1 The standard of review which we apply in this case was announced in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-514, in which the Illinois Supreme Court stated:
"In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Emphasis added.)
Accordingly, in the instant case, we review all of the evidence, in its aspect most favorable to appellee, to determine whether such evidence so overwhelmingly favors Ford Motor Company that no verdict based on such evidence (except for appellant Ford Motor Company) could ever stand.
It is well to keep in mind while reviewing the evidence that appellee alleged, and sought to prove, that she was injured as the result of operating the 1968 Ford Falcon automobile, which, as designed, manufactured and sold, was defective and unreasonably dangerous so that its braking mechanism failed to function properly.
The evidence shows that Len Spires, Carbondale, Illinois, of Spires Institutional Grocers, on February 1, 1968, purchased from Vogler Motor Company, Inc., Ford dealer, a new 1968 Ford Falcon four-door sedan. Prior to February 13, 1968, the date appellee sustained injury, Mr. Spires gave the Ford Falcon to appellee for her use as a traveling saleslady for Spires Institutional Wholesale Grocers. The vehicle was in the same condition when Mr. Spires gave it to appellee as it was when he purchased it. The Ford Falcon had operated to Mr. Spires' satisfaction and without difficulty.
On February 13, 1968, appellee was operating the Ford Falcon as a saleslady for her employer, and the vehicle had less than 1,000 miles of travel by that date. No changes had been made in the vehicle, and prior to the accident, the vehicle was operating properly. Appellee had noticed nothing unusual about the Ford Falcon, including its brakes.
At about 4:30 to 5 P.M. on February 13, 1968, appellee was on her way home to Johnston City, Illinois, having made a call to the Ramada Inn in Marion, Illinois. She was driving the Ford Falcon in a northerly direction on Illinois Route 37, which is a two-lane road. At or near the Village of Dogwalk, Illinois, a car passed appellee, and appellee remained behind this car until the accident happened. The road was straight and level, and the weather was clear. When appellee was at a point near the south entrance of the Rolling View Tavern the car in front of her made a right-hand turn. Appellee was then 2 or 2 1/2 car lengths behind this car, traveling at approximately 30 or 40 miles per hour. There was nothing to keep appellee from turning the Ford Falcon to the left and going on around the car ahead. Appellee could see ahead, and the opposite lane of highway coming toward her was clear at the time. She was not too close to the other car, but she automatically put on the brake. The brakes were not applied hard, as appellee testified that she "touched" the brakes. The wheels did not lock. The steering wheel did not lock when the brakes were applied. Appellee made no effort to turn the car to the left or right, gently or otherwise, when she applied the brakes. She did not "jerk" the Ford Falcon. Appellee testified that the Ford Falcon brakes did not hold at this time, and she further testified that she did not know what then happened; she just held on to the steering wheel. She did not know what was wrong with the vehicle. The Ford Falcon veered to the left, crossed the opposite lane, sliding across the pavement to the left shoulder, and turned upside down with all four wheels in the air.
Appellee testified that there never had been any grabbing of the brakes at any time before the accident. There was never any vibration or banging sound before the accident. There never was a problem with the steering. There was a red light on the dashboard of the Ford Falcon, which would light up if the brakes were not working properly. Prior to the accident the appellee never saw such red light go on.
Appellee's witnesses, Ronald Swafford and Larry Farner, both wrecker drivers who were at the scene of the accident, testified, over the objection of appellant, that they had viewed the Ford Falcon at the scene of the accident, while the vehicle was resting on its top. Both testified that they saw a brake line wrapped around the drive shaft of the vehicle. Both testified that certain of appellee's exhibits (photographs), correctly portrayed the underneath side of the Ford Falcon as they had seen it on the date of the occurrence.
Over the objection of appellant, appellee called Paul Calhoun, pursuant to section 60 of the Civil Practice Act. Mr. Calhoun, who worked for Vogler Motor Company, testified that the Ford Falcon was brought to Vogler Motor Company, about a day or two after the accident occurred. He examined the vehicle at that time and found that the brake-fluid line was wrapped around the vehicle's drive shaft two or three times. The brake line that was broken carried brake fluid to the rear wheels. He testified that the rear-wheel brakes would not function with the back brake-fluid line broken, but notwithstanding the broken back brake-fluid line, there still would have been brakes to the front wheels in other words, the broken brake-fluid line wrapped around the drive shaft at the universal joint would have rendered inoperative the brakes to the back or rear wheels, but not the brakes to the front wheels.
Further, Mr. Calhoun testified that the brake line on a Ford Falcon automobile goes along the underneath side of the car in the well where the drive shaft is located. It is fastened to the floor board of the car with clamping screws, and is 3 or 4 inches from the drive shaft. The underneath side of the car is metal. Mr. Calhoun testified that when he examined the Ford vehicle, there was no brake pedal action with respect to the vehicle, but this was because the vehicle had been turned upside down, thereby permitting all of the brake fluid in the cylinder to reverse itself and to go to the bottom of the cylinder. This condition caused air space between the piston and the brake fluid so that the brake pedal, if pushed downward, would go all the way to the floor board. Such condition would effect a still good brake line to the front wheels.
Appellee's expert witness was John Essick, operator of a brake shop. Mr. Essick had been in the business of overhauling and doing brake work for 40 years. Apparently, Mr. Essick did not examine the underneath side of the vehicle immediately after the occurrence and before the vehicle was repaired. He apparently did look at the vehicle just prior to the trial.
Over the objection of the appellant, Mr. Essick examined appellee's photographs depicting the underneath side of the vehicle and the break in the back brake-fluid line. Mr. Essick identified the photographs as depicting the brake line wrapped around the drive shaft and stated that the photographs showed that the brake line was looped around one of the universal joints which had caused the line to wrap itself around the drive shaft. Mr. Essick was of the opinion that the car was moving in a forward direction when the line wrapped around the shaft.
Over the objection of the appellant, Mr. Essick testified that in his opinion, the brake malfunction happened just before the appellee applied the brakes, or at the immediate time she applied the brakes. But he also testified further that it would be almost utterly impossible for the drive shaft to move over to catch the brake-fluid line to cause it to break, because under normal driving conditions there is very negligible side-to-side motion of the drive shaft, at most an inch, and the brake line is 2 1/2 inches from the universal joint. On cross-examination, Mr. Essick testified that he saw nothing defective about the clip or bolt that held the brake line to the bottom of the vehicle, and that whatever had caused the bolt to sheer away and the brake line to break or the clip to do so had to occur after it left the possession of Vogler Motor Company. The brake line would have had to become disconnected from the holding clip in order to come into contact with the drive shaft.
Most important is Mr. Essick's testimony with regard to the cause, if any, of the Ford Falcon changing directions at the time when appellee applied the brake. Mr. Essick was asked:
"Q.: * * * Under the circumstances that you heard testified here by Mrs. Hepler, assuming she was driving along about 35 to 40 miles per hour, the brake line snaps like that, the instant the brakes applied, is there any reason for the automobile to move left or right, assuming it is going straight ahead?"
In response to that question, Mr. Essick stated: "No, Sir, I don't know of any reason why, just the brake line going out." When asked if his opinion would be changed in regard to the matter if circumstances were changed from that to which the appellee had testified with regard to her speed and closeness to the automobile in front of her, Mr. Essick ...