APPEAL from the Circuit Court of Vermilion County; the Hon.
RALPH PEARMAN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
The plaintiff sued the retailer, Wright Ford Sales, Inc. (Wright) and the manufacturer, Ford Motor Company (Ford), for injuries sustained when a 1966 Ford Galaxie 500 LTD hardtop allegedly suffered a brake malfunction, resulting in serious injuries to the plaintiff. This products liability case was tried before a jury and judgment was entered upon a verdict for $40,000 damages against Ford. A not guilty verdict was returned as to the claim against Wright. Ford appeals.
Although no pleading issue is presented, it is necessary that the pleadings be briefly reviewed in order to consider some issues in this case. Count I of the complaint alleged that the auto as designed, manufactured and sold by Ford was defective and unreasonably dangerous because its braking system was unable at all times to bring the car to a stop. This count also alleged that this condition existed at the time of manufacture and that the unreasonably dangerous condition was the proximate cause of plaintiff's injuries.
A paragraph of this count initially alleged that plaintiff was in the exercise of due care for his own safety. At the conclusion of all the evidence, plaintiff was permitted to delete this paragraph.
Count II alleged negligence of the defendants. This count was eliminated from the case upon motion for directed verdict at the close of plaintiff's case.
The auto was manufactured by Ford in 1965. The car was tested to ascertain that all parts were functional. The brakes were included in the test. In September of 1965, the car was delivered to Wright. Upon receipt, Wright inspected the auto. This inspection included a check to see that there was fluid in the master brake cylinder, and the car was driven to see that the brakes worked. Wright did nothing to the brakes other than the above.
In December of 1965, Wright sold the car to Russell Beasley. This purchaser drove the car for about 1 month. During that month, nothing was done to the brakes. The car threw a rod and was returned to Wright. The car was repaired, although again the evidence is uncontroverted that nothing was done to the brake system. Upon completion of this repair, the car was sold by Wright to Robert Davis. This was in March of 1966, and the car then had some 500 miles on it.
The car was usually driven only by Robert Davis or his wife Ann Davis. Plaintiff was the only other driver, and he had driven the car only on one occasion prior to the date of his injury.
On May 16, 1966, Ann Davis, plaintiff's daughter, drove the car from Georgetown to near Hoopeston. At a stop sign the brakes did not function, although the pedal did not go all the way to the floor. She immediately tried again and the brakes functioned properly. She said nothing to plaintiff regarding the incident.
Plaintiff took the car to do an errand for his daughter. He drove the car on the errand without any brake difficulty until, on the way home at a "T" intersection, the brakes did not work; the emergency brake also did not function. The plaintiff was unable to negotiate a turn because of obstructions and was unable to stop the car which was then traveling at about 35 mph. The car hit a tree and plaintiff was severely injured. There were no witnesses to the occurrence other than plaintiff. The road was dry; the weather was clear and sunny. The car had been driven some 7500 miles at the time of the accident. Plaintiff had lived in the area for over 20 years and had driven the route many times.
Following the accident, an ambulance was called. In response to the driver's question as to what happened, plaintiff replied "no brakes." Plaintiff in his statement to the treating physician stated, "the brakes went bad and he hit a tree."
No issue is raised upon this appeal regarding the amount of damages.
Following the accident, the car was taken to a Ford garage in Hoopeston. It was examined there by Robert Davis the day after the accident. He found the emergency "brake was jammed all the way into the carpet, and the steering wheel was broke, the dash was crushed in, and the floor was shoved up to the bottom of the power brake." The car remained in Hoopeston for an unstated period of time. It was then removed to Smith's Auto Parts in Danville where it remained for some 3 months, then it was removed to Westville. In October, a David Smith examined the car in Westville. The front fenders, grill, radiator, motor and transmission were missing. The tires, wheels and rear fenders had also been removed.
John Andrews testified as an expert witness for the plaintiff. In the course of his testimony, he described the functioning of a single master brake cylinder system as used on the Ford automobile here involved and testified that in 1966, two other makes of automobile used a dual master brake cylinder system. He described such a system and his testimony was to the effect that a defect or leak in a dual system only disables one-half of the brake system, leaving a residual braking function. In contrast, a single system, if defective, or in the event of a fluid loss, results in a complete loss of braking function. In the course of his testimony, Andrews observed the obvious ...