Kupkowski v. Avis Ford, Inc.

51 Mich. App. 668 (1974) 215 N.W.2d 767 KUPKOWSKI v. AVIS FORD, INC. Docket No. 15364. Michigan Court of Appeals. Decided March 4, 1974. Alan W. Kaback, for plaintiffs. Dice, Sweeney & Sullivan, P.C. (by Altero J. Alteri and Paul F. Ray), for defendant. Before: V.J. BRENNAN, P.J., and T.M. BURNS and VAN VALKENBURG,[*] JJ. *670 V.J. BRENNAN, P.J. This is a products liability case. Defendant appeals from a jury verdict for plaintiff on counts of implied warranty and negligence.[1] Defendant contends it was error for the trial court to deny its motions for directed verdict and judgment notwithstanding the verdict. In reviewing these motions we must view all the evidence and testimony adduced at trial in the light most favorable to the plaintiff, the party against whom these motions were made. If, when so viewed, there is any evidence which was competent and sufficient to support the jury's determination, this determination should not be disturbed. Wamser v N J Westra & Sons, Inc, 9 Mich App 89; 155 NW2d 871 (1967); Taft v J L Hudson Co, 37 Mich App 692; 195 NW2d 296 (1972). Five weeks after plaintiff purchased a used car from defendant, he ran a red light and collided with another automobile. Plaintiff testified that he was unable to stop because his brake pedal would not depress. This testimony is the sole evidence of brake failure. Defendant offered testimony of various witnesses, including plaintiff, that there had been no prior trouble with the automobile's brakes. Indeed, the investigating police officer testified that an inspection of plaintiff's automobile immediately after the accident revealed that the brakes worked properly and that it had left skid marks at the scene. We conclude that the evidence was insufficient to support the jury verdict. Therefore, it was error to deny defendant's motions for directed verdict and judgment notwithstanding the verdict. *671 Reversed and remanded for the entry of a directed verdict. VAN VALKENBURG, J., concurred. T.M. BURNS, J. (dissenting). I cannot subscribe to the result reached by the majority. In Meli v General Motors Corp, 37 Mich App 514; 195 NW2d 85 (1972), an accelerator spring on an automobile became disconnected and caused an accident. Although we affirmed the entry of a directed verdict for the defendant (the manufacturer) on the grounds that there was no evidence at all by which a jury could conclude that the spring became disconnected because of a defect in the spring mechanism, we noted that where an enclosed part such as a braking device failed, it could be reasonably concluded that the defect was caused by the manufacturer rather than by an independent cause. Here in light of the fact that the alleged defect occurred in a "closed" power braking system and the plaintiff testified that the brake pedal would not depress when he attempted to stop the auto, a reasonable person could logically infer that the brake mechanism was defective and that such defect existed when the vehicle left the defendant's control, and, of course, this question of fact would be for the jury to determine. Therefore, it is my opinion that there was a sufficient amount of evidence presented to warrant the denial of defendant's motion for directed verdict. However, balancing the plaintiffs' testimony against the investigating officer's testimony that the brakes of defendant's vehicle were in good working order immediately after the accident and especially the officer's testimony as to the existence of skid marks left by the auto at the scene of the accident, I find the jury's verdict to be against *672 the great weight of the evidence. Consequently rather than reversing and remanding for the entry of a directed verdict as the majority has done, I would reverse and remand the case for a new trial. NOTES [*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968. [1] The jury also returned a verdict for plaintiff on a separate count of misrepresentation of mileage. There was ample evidence to support that verdict, and it is not a subject of this appeal.