Bishop v. Gaudio

It is not shown here that any improper conduct by defendant Allen, the driver of the automobile, caused or contributed to plaintiff's injury. He was on the right-hand side of the highway, on the pavement, with his automobile under control. He passed the children by the side of the road safely. Plaintiff was not injured by his automobile. Because the driver Allen observed more than ordinary care and caution and slowed his automobile down to pass the children, his automobile was struck by the truck-train of defendants Reynolds Avery, driven by defendant Gaudio. The liability of the Allens is based solely upon the exercise by Clarence E. Allen, the driver of the automobile, of extraordinary care and caution to prevent injuring plaintiff and those with her. On the other hand, the truck-train of defendants Reynolds Avery, driven by Gaudio, weighing empty over 13 tons, without adequate brakes, was driven over the *Page 74 brow of the hill, down grade, on a wet and slippery pavement, out of control, and when its brakes were applied the trailers buckled, the outfit ran off the pavement, and, slithering down the hill, hit plaintiff and defendant Glen Allen's automobile driven by his son Clarence E. Both plaintiff and defendant Clarence E. Allen were in the exercise of due care and caution. The judgment entered is reversed, defendants Gaudio and Reynolds Avery held liable under the undisputed facts, and defendants Allen held not liable under the undisputed facts, and the question of damages re-submitted to a jury. McDONALD, C.J., and CLARK, SHARPE, and BUTZEL, JJ., concurred with POTTER, J.