dissenting. Wayne Herrin testified at trial that the brakes of the logging truck were “spongy” and “didn’t feel right” on the hills and curves. Because of this, he and his brother, Steve Herrin, stopped to check them. Wayne Herrin, who was driving, testified that he “set” the brakes after stopping the truck. This process involved pushing two lever's on the dash — one for the tractor and one for the trailer — and pulling one lever on the steering column which operated as a parking brake for the trailer. After the two men got out of the truck, it began to roll, which caused the death of Steve Herrin.
Wayne Herrin further testified that if the brakes had been set correctly, the truck should not have moved. After the accident, he said, he jumped in the passenger side of the truck, “climbed across, reapplied the brakes and reset all — all the levers.” Herrin did testify that setting the brakes is something you do automatically. But he admitted that the truck never should have moved after the brakes were set or applied the first time, and after he reset the brakes following the accident, the truck never moved again.
The appellant, John “Bo” Bess, agreed that there was no way the truck could have moved had the brakes been set unless something was broken. He testified that he drove the truck after the accident, and nothing was wrong with it.
The other scenario espoused by the appellees is that Bess had failed to adjust the brakes that morning before the trip, and the truck was supplied to the Herrins in an unsafe condition. Under either the scenario where Bess’ agent, Wayne Herrin, negligently set the brakes or the scenario where Bess provided an unsafe vehicle, Bess was in control and is responsible.
Prosser in his distinguished treatise has this to say about inferred negligence:
It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant. On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where it is clear that it is at least equally probable that the negligence was that of another, the court must direct the jury that the plaintiff has not proved his case. The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed.
As to dead mice, and the like, in capped bottles, the possibility of deliberate tampering by a stranger has been ruled out as too unlikely, in the absence of some evidence to indicate it. The same kind of question arises when the defendant’s car, parked on the side of a hill, is found in motion shortly afterward. Various explanations suggest themselves, including the same tampering stranger; but it can still be found that the most probable one is negligence in parking the car.
Prosser, Law of Torts, § 39, pp. 218-219 (4th Ed. 1971) (Emphasis added.); see also “Presumption of Negligence and Application of Res Ipsa Loquitur Doctrine In Action for Injury or Damage Caused By Accidental Starting Up of Parked Motor Vehicle,” 55 ALR3d 1260, et seq. (1974).
From the testimony and the circumstances, the jurors could have reasonably inferred that Bess’ agent, Wayne Herrin, did not correctly set the brakes. The jurors, of course, had the opportunity to observe Wayne Herrin’s demeanor on the witness stand on what is largely a credibility issue. Or the jurors could have inferred that the truck was unsafe to begin with. In either case, Bess was responsible for the instrumentality causing the accident. To hold otherwise improperly places on the estate of Steve Herrin the obligation to establish how Bess’ agent, Wayne Herrin, parked the truck. See Gleason v. Jack Alan Enterprises, Inc., 374 A.2d 408 (Md. Ct. App. 1977). Of course, the estate is limited in this regard to the testimony of Wayne Herrin.
In Gleason, a delivery truck without a driver had rolled down a hill and struck a pedestrian in Silver Spring, Maryland. The driver told the investigating police officer that he had set the emergency brake. There was no evidence that any third party had tampered with the truck. The trial court, nevertheless, directed a verdict in favor of the truck’s owner.
The Maryland Court of Appeals reversed and wrote in part:
It seems clear to us that the lapse of time between the parking of the vehicle and its unattended motion from its parked position is only one of many factual considerations which a jury may consider in determining whether the vehicle at the time of the occurrence was in the exclusive control of the defendant. The trial court, by its ruling, imposed on the [plaintiff] the obligation to produce testimony to establish the manner in which the vehicle had been parked and the time which it had remained parked before it struck the [plaintiff]. We have found no case which imposes such a burden on the injured party nor have counsel cited any such authority to us. Where, as in this case, that information is peculiarly within the knowledge of the [defendant] or its employees, and, therefore, much more readily ascertainable by the [defendant] than by the [plaintiff], the imposition of the burden suggested by the trial court would in effect emasculate the legal significance of res ipsa loquitur and require the [plaintiff] to surrender the favorable inference which arises in those cases where the doctrine applies.
Gleason, 374 A.2d at 413-414.
No evidence of any tampering with the truck by a third party or any other reasonable cause for the accident exists. Moreover, the accident occurred after both men were out of the truck and almost immediately after the brakes were supposedly set. The truck would not have moved without some negligence on the part of Bess or his agent.
JULY 20, 1992The net effect of this decision is to take the matter away from the jury, which is comparable to a directed verdict. Yet, authority abounds for submitting cases of driverless vehicles to the jury for resolution. See, e.g., Senase v. Johns, 420 N.E.2d 1104 (Ill. App. 1981 ) Knippenberg v. Windemuth, 238 A.2d 915 (Md. Ct. App. 1968); Gresser v. Taylor, 150 N.W.2d 869 (Minn. S. Ct. 1967); Lewis v. Wolk, 312 Ky. 536, 228 S.W.2d 432 (1950); Bobbitt v. Salamander, 221 S.W.2d 971 (Mo. Ct. App. 1949); Bacon v. Snashall, 238 Mich. 457, 213 N.W. 705 (1927). I would affirm the jury’s verdict.
Hays, J., joins.