Garfinkle v. Birnios

⁴⁰³ Henderson, J., delivered the opinion of the Court. In the trial of this automobile collision case the jury rendered a verdict for the defendant, and the only question raised on appeal is the adequacy of the trial court’s instructions. The facts are virtually undisputed and may be briefly stated. On September 29, 1960, the appellee was driving north on Georgia Avenue, a two lane highway, at a speed of from twenty to twenty-five miles per hour, behind an automobile driven by Mrs. Garfinkle.

She stopped to make a left hand turn at an intersection. He applied his brakes within a distance of a car length and one half away, but his brakes suddenly failed and he struck the rear of her car. He testified that he had used the brakes repeatedly since leaving his home in Washington that morning, and in fact at the intersection immediately south of the scene of the accident, and they functioned perfectly. A police officer who investigated the accident testified that the foot-brake was not in working order when they tested it, that it would go to the floor without exerting any pressure on the brake drums.

Birnios testified that he had bought the car, a 1950 Buick, in 1950, and had kept it in good condition. He testified that he had had it serviced and inspected about once a month, besides having it tested annually as required by the law of the District of Columbia. He testified that he had had the car overhauled about three weeks before the accident, when a new muffler was installed and the car was repainted. A mechanic, Wilson, testified that he repaired the brakes after the accident.

He found no evidence of a fluid leak. Upon disassembling the master cylinder, however, he found that it was pitted and scored. He expressed the opinion that this had permitted the fluid to by-pass the plunger and cups, causing the sudden brake failure. He testified that this could not have been detected by inspection, short of a complete disassembly of the brake system.

He testified that he had inspected the car several weeks before the accident, and the brakes operated perfectly in a roadtest. The trial court read to the jury relevant provisions of the Motor Vehicle Law, Code (1957), Art. 66j4, sec. 224 (a) (Following too closely) and secs. 291 (a) and 292 (d) (brake equip ⁴⁰⁴ ment and maintenance). He read to the jury quotations from the case of Sothoron v. West, 180 Md. 539 . That case was against the driver, who was a bailee and not the owner, of a car having defective brakes.

Recovery was allowed because the driver had driven a long distance, in a strange car, without once testing the brakes “by the simple