Opinion
July 30, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Balaban & Lutz, Harlan G. Balaban, John A. Lobus, Denver, for plaintiff-appellant.
Garrett & O'Hara, James M. O'Hara, Denver, for defendant-appellee.
ENOCH, Judge.
P. R. Bates, plaintiff, appeals from a judgment entered on a jury verdict in favor of defendant, C. J. Bar, in an action for injuries arising out of an automobile accident. We reverse.
On December 10, 1971, plaintiff's vehicle was struck from the rear by defendant's vehicle because defendant's brakes failed to operate properly. The vehicle driven by defendant was almost 20 years old on the date of the accident. Defendant admitted during trial that he had had trouble with his brakes both several weeks prior to the accident and on the day of the accident itself. The pertinent part of his testimony is as follows:
'Q. During the time in which you had gone from your home to the school, and then proceeded on toward where the accident occurred, had you had trouble with your brakes?
A. Brakes weren't strong; I had to make sure they got pumped every once in awhile to keep the fluid out; take a little stab at the brakes and then put the brake down, otherwise they were pretty weak.'
Defendant also testified that prior to the accident, he had added a pint of brake fluid because he thought it might help the bad brakes. However, at that time he overfilled the reservoir.
Although defendant's answer alleged contributory negligence, the only defense to liability on which testimony was presented at trial related to the defense of 'sudden' brake failure. At the close of all the evidence, plaintiff moved for a directed verdict on the issue of negligence, but this motion was denied. Over plaintiff's objection, the following instruction was submitted to the jury:
'If the operator or person in charge of a vehicle has done all that would be expected of a reasonably prudent person, and a sudden failure of equipment occurs, not reasonably foreseeable by him, then he is not negligent because of the failure of his equipment.'
Plaintiff contends that it was error to give this instruction and that the court should have directed a verdict on the issue of liability because defendant failed, as a matter of law, to prove his defense of sudden equipment failure.
Plaintiff established a prima facie case of negligence when he showed that his vehicle was struck from behind by defendant's automobile. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450. Defendant thereupon had the burden of producing evidence to show that the collision was not caused by his negligence. Bartlett v. Bryant, 166 Colo. 113, 442 P.2d 425. Colorado recognizes the defense of sudden equipment failure, but only in cases in which defendant is not chargeable with knowledge that the equipment was or might have been in bad condition. Eddy v. McAninch, 141 Colo. 223, 347 P.2d 499; Bartlett v. Bryant, Supra.
Here, the only evidence presented by defendant to rebut the presumption of negligence related to the failure of his braking system. However, defendant admitted that he had had serious trouble with his brakes both before and on the date of the accident. In essence, defendant admitted that he had knowledge of facts which should have led him to take the steps necessary to prevent brake failure. See Eddy v. McAninch, Supra. From the trial testimony, it is clear that the equipment failure could not be considered unforeseen by the defendant. Defendant was therefore not entitled to the sudden equipment failure instruction, and a directed verdict on the issue of negligence should have been granted by the trial court.
The judgment of the trial court is reversed and the cause remanded for a new trial on the issues of whether defendant's negligence was the proximate cause of the injuries alleged, and, if so, the amount of damages, if any, sustained by plaintiff.
COYTE and RULAND, JJ., concur.