Freedman v. Wager & Karpeles , 1919 Pa. Super. LEXIS 199 ( 1919 )

Opinion by

Henderson, J.,

This is an appeal from the refusal of the court to make absolute a rule for judgment for the defendant non obstante veredicto. The plaintiff’s claim grew out of a contract of the defendants to repair an old Ford automobile which he owned. He testified that he delivered the car to them “to overhaul the front system,” that the starting gear was not acting right and there were some loose springs and these had to be repaired. The defendants made repairs on the car and after having tested it delivered it to the plaintiff. He drove it from their place of business to city hall square where he had a hack stand. The distance is said to have been about five miles. He got the car about a o’clock and at about 7 o’clock started home. His course was northwardly on Broad street and westerly on Spring Garden street. When he came to the place where a turn to the latter street was necessary he thus describes his movement: “I went to swing over to the side of the street near the curb and of course I made a turn to my right in order to go west in front of an automobile and when I turned I intended to turn back the wheel, you know, but I couldn’t do it and the wheel stuck there and locked on me......I tried to pull out the other way to straighten out the car to go up north but I could not move it. My car started to go right up the sidewalk but it didn’t reach the sidewalk as the wheels were locked, you know, it went a little in a circle and my left wheel struck the curb and it upset my automobile and I fell over with the automobile.” The complaint is that the defendants were negligent in making the repairs in this that the front axle was dipped forward about one-sixteenth of an inch, whereas it should have been dipped about one-eighth of an inch to the rear, the effect of which was that it was difficult for the driver to steer the car and the wheels were liable to become locked. The car was used to some extent after the accident and sixteen days afterward was taken to a shop where it was examined by a witness, Greenwalt called by the plaintiff, at which examination the position of the axle was discovered. This witness testified, on cross-examination, that the collision of the car with the curb as described by the plaintiff could have produced the condition which he found. Evidence to the same effect was given by Kling, a witness for the defendant, who said the only way the axle could get out of line was by a bump, that if it struck the curb with sufficient force this result might follow. There was uncontradicted evidence that the driver of a Ford car could pull it “passed the centre” if he pulled enough, in which case the wheels are set in the position the car is going. The plaintiff testified that lie was going twelve or fourteen miles an hour when lie made the turn. The court submitted to the jury the inquiry whether the wheels became locked by the sudden and extreme turn the plaintiff gave his car in order to pass the car immediately ahead of him or whether they became locked by virtue of the improper adjustment of the steering rod or the defective, careless and negligent work done by these defendants. The whole of the plaintiff’s case was based on the theory that the axle of the car was not properly located by the defendants but that conclusion is reached from an examination of the car after the accident which, according to the evidence offered by the plaintiff’s witness, might have been produced by the impact of the car against the curb. The plaintiff was required to prove not only the happening of the accident but that the defendants’ negligence was the cause of it. The circumstances did not make the occurrence of the accident sufficient evidence of the negligence alleged. The verdict was based on the conclusion that the defendants’ work was not properly done, notwithstanding the evidence that another and probable cause existed for the condition found by the witness, Greenwalt. Where any other cause appears to which the injury may, with equal fairness be attributed, the inference of negligence cannot be drawn. Oil Co. v. Torpedo Co., 190 Pa. 350. There is nothing in the case which reasonably excludes any other cause of the accident then the improper adjustment of the axle nor is it asserted that the operation of the steering wheel by the driver could not have locked the wheels. A careful examination of the evidence brings us to the conclusion that the jury could 'only guess at the cause of the accident from the testimony presented and that when they were instructed by the trial judge to determine whether the wheels became locked by the sudden turn he gave the car or because of the improper adjustment of the starting rod or the defective, negligent and careless work done by the defendants, the jury was permitted to find the fact without adequate testimony to sustain the finding. The motion of the defendants for judgment non obstante veredicto should have been sustained.

The judgment is reversed.