Opinion
November 17, 1967
Defendants Ford Motor Company and Crailo Motors appeal from an amended judgment against them entered upon a verdict in an action brought by plaintiff for personal injuries. The appeal brings up for review the denial of their motions for a dismissal and to set aside the verdict. Plaintiff cross-appeals from so much of the judgment as dismissed her complaint against the remaining defendants. On August 6, 1961, the automobile owned and operated by plaintiff, while stopped in compliance with a traffic signal, was struck in the rear by a Ford truck owned by defendant Wilhelmina Krug and driven by Herman Krug. Defendant driver testified he had been unable to stop because his brakes did not work and that when he applied pressure to the brake pedal and pushed it to the floor, the truck would not slow down nor stop. The truck had been delivered by the defendant dealer (Crailo) less than a month prior to the accident, and had been driven about 1,261 miles. There had been no previous trouble with the brakes. An inspection of the vehicle following the collision disclosed a loose bleeder valve on the right front wheel, which could cause loss of brake fluid and brake failure. There was testimony that if such valve were properly tightened, it would not be loosened by ordinary driving. There was no indication that the valve had been tampered with prior to the inspection following the accident and, in fact, a representative from Ford Motor Company gave testimony that it had not been damaged in the accident. Despite proof of a regular course of testing and inspection by the manufacturer and dealer we could not say that the jury was not justified in inferring that there must have been some failure of care in the manufacture or inspection of the particular vehicle involved in this case ( Markel v. Spencer, 5 A.D.2d 400, affd. 5 N.Y.2d 958). The question whether any negligence on the part of defendant driver contributed to the collision obviously was for the jury to determine. Plaintiff's freedom from contributory negligence had been conceded. However, in this close case, the comments by plaintiff's attorney as to the adequacy of the individual defendants' insurance coverage and his obvious and inflammatory appeal to the sympathy of the jury, must be deemed to have resulted in substantial prejudice ( Rendo v. Schermerhorn, 24 A.D.2d 773). Judgment reversed, on the law and the facts, and a new trial ordered, with costs to appellants to abide the event. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gabrielli, J.