In legal terms, an automobile with defective brakes is clearly a dangerous instrumentality. Bogart v. Cohen-Anderson Motor Co., Inc., 164 Or. 233 ( 98 P.2d 720). See, also, MacPherson v. Buick Motor Co., 217 N.Y. 382 ( 111 NE 1050, LRA1916F, 696, Ann Cas 1916C, 440, 13 NCCA 1029).
Rush v. McDonnell, 214 Ala. 47, 106 So. 175. It is common knowledge that an automobile with defective brakes or steering mechanism is, in view of its power, weight and speed, a dangerous instrumentality when used on the public highways and a dire menace to every one who may come into its close vicinity. Motor Terminal Transportation Co. v. Millican, supra; Al DeMent Chevrolet Co. v. Wilson, supra; Bogart v. Cohen-Anderson Motor Co., 164 Or. 233, 98 P.2d 720. The following charges were refused to defendants:
A bailment is lucrative, not gratuitous, if made at the instance or invitation of the bailor because of expected benefits, direct or contingent. Bain v. Culbert, 209 Ala. 312, 96 So. 228; Prince v. Alabama State Fair, 106 Ala. 340, 17 So. 449, 28 L.R.A. 716; Ridgely Operating Co. v. White, 227 Ala. 459, 150 So. 693; Birmingham Terminal Co. v. Thomas, 207 Ala. 363, 92 So. 803. An automobile dealer who places an automobile in the hands of a prospective purchaser, knowing it is to be operated upon the public highways, must use ordinary care to see that it is in a reasonably safe condition for use on the public highways. Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72, 61 A.L.R. 1333; Bogart v. Cohen-Anderson Motor Co., 164 Or. 233, 98 P.2d 720; Holt v. Eastern Motor Co., 65 Ga. App. 502, 15 S.E.2d 895, 897; Vaughn v. Millington Motor Co., 160 Tenn. 197, 22 S.W.2d 226. The duty of diligence, as applied to a bailor in a lucrative bailment, does not arise entirely out of contract, but out of obligations imposed by law on everyone in his dealings with his fellows. Saunders System Birmingham Co. v. Adams, supra; Bogart v. Cohen-Anderson Motor Co., supra. The trial court refused to disturb the verdict and this court, on appeal, should likewise refuse to disturb it. Alabama. Great Southern R. Co. v. Baum, 249 Ala. 442, 31 So.2d 366.
The plaintiff contends that the benefit to the defendant was the good will which he created with his customers by loaning them a car while the customer's car was being repaired, thus bringing the plaintiff within the 7th classification above set out. She relies upon the following cited cases: Bogart v. Cohen-Anderson Co., 164 Or. 233, 236, 98 P.2d 720; Woodruff v. Painter Eldridge, 150 Penn St 91, 30 Am St Rep 786; Kleckner v. Hotel Strand, 60 Penn Super 617, LRA 1918C 674-675; Colburn v. Washington State Art Association, 80 Wn. 662, 141 P. 1153; White v. Burke, 31 Wn.2d 573, 197 P.2d 1008. The first case cited, Bogart v. Cohen-Anderson Co., supra, is clearly distinguishable from the case at bar.
The defendant (bailor) is not an insurer against the defective condition of the car placed in plaintiffs' (bailees') hands, but he must use ordinary care to see that it is in a reasonably safe condition to use on the public highways. Bogart v. Cohen-Anderson Motor Co., 164 Or. 233, 98 P.2d 720. In order to establish a prima facie case, i.e., one sufficient to go to the jury, it was incumbent upon plaintiffs to establish by some competent evidence facts tending to show each of the following elements, viz.
But we need not at this time, for the purposes of this case, determine whether the general rule of nonliability to persons not in privity of contract still exists or is to be denied in this state; see Carter v. Yardley Co., Ltd., 319 Mass. 92, 64 N.E.2d 693, 164 ALR 559; for the facts of this case place the plaintiff's rights clearly under the generally recognized and accepted exception to the general rule. In Bogart v. Cohen-Anderson Co., 164 Or. 233, 236, 98 P.2d 720, we said: "It is common knowledge that an automobile with defective brakes is, in view of its power, weight and speed, a dangerous instrumentality.
The controversy between the substantial evidence and the scintilla rule must be deemed to be finally put at rest. Bogart v. Cohen-Anderson Motor Co., Inc., 164 Or. 233, 98 P.2d 720 (1940); Hisey v. State Ind. Acc. Com., 163 Or. 696, 99 P.2d 475, (1940); Ylvich v. Kalafate, 162 Or. 365, 92 P.2d 178 (1939); Vale v. State Ind. Acc. Com., 160 Or. 569, 86 P.2d 956 (1939); Holland v. Eugene Hospital, 127 Or. 256, 270 P.2d 784 (1928); Hamilton v. Kelsey, 126 Or. 26, 268 P. 750 (1928). Where the alleged negligence of the defendant consisted of physical non-feasance, that is, where the defendant did no physical act which affected plaintiff's condition, and the negligence, if any, was the failure to diagnose and advise, it is not sufficient for a plaintiff to show subsequent ailments and rest his case upon the specious doctrine of post hoc ergo propter hoc.