John Nielsen, New York City, of counsel (John P. Smith, New York City, attorney), for appellant.
Bernard Meyerson, Brooklyn, of counsel (Irving Klein and Herman E. Hoberman, Brooklyn, attorneys), for respondents.
Before PECK, P. J., and CALLAHAN, BREITEL, BASTOW and RABIN, JJ.
Defendant automobile owner appeals from a judgment, entered on a jury verdict, in favor of plaintiffs, one, the relief driver of defendant's automobile, and the other, the relief driver's wife, who was merely a passenger. The accident occurred when a rear tire, weakened from wear, [141 N.Y.S.2d 530] blew, causing the car to overturn, thereby injuring plaintiffs. The judgment should be modified to dismiss the complaint of plaintiff relief driver, since, as a matter of law, he was concurrently negligent.
Plaintiffs, a husband and wife, arranged with defendant to drive to Florida in defendant's automobile. All expenses of the pleasure trip, except those for personal items, were to be shared. Plaintiff husband was also to share the driving with defendant.
Prior to the trip, defendant owner took his car to a garage for inspection. He had owned the automobile, new when purchased, for over 16 months, during which time it had been driven about 20,000 miles. He was advised that the two front tires needed to be replaced. This he did, retaining the three original tires for continued use, two in the rear and the last as a spare. These three tires were in approximately the same condition. They had no visible cuts or breaks. The garage owner testified that he had also advised replacement of the two rear tires, but, on cross-examination, he admitted that he had not told this to defendant. Rather, he had instructed one of his employees to so inform defendant, but there is no evidence that the employee did, in fact, give this advice to defendant. There is no testimony that the garage owner made more than an external inspection of the tires.
On the way south, one of the rear tires went flat. Defendant owner, plaintiff relief driver, and another person joined in the
tire change. The spare was used to replace the flat tire, which was put in the tunk of the car. Plaintiff relief driver looked at the flat tire. 'It was worn down quite a bit. * * * [There was not] too much tread left. * * * It was coming down to the rubber itself.' He claimed, however, not to have noticed the condition of the spare, although it was put on the car in his presence by defendant.
Without further mishap, the vacationers reached Florida. There they rode around in defendant's car. Defendant testified that the tires were inspected in Florida by a garage.
On the return trip, in South Carolina, while plaintiff relief driver was driving at 45 miles per hour, a rear tire (the testimony does not indicate which one) blew. He slightly touched the brakes. The car jumped forward, swerved and turned over onto its roof, injuring both plaintiffs.
There was no evidence the defendant owner had actual knowledge of any defect in the rear tires. It is assumed, however, that the jury correctly found that defendant owner was negligent in failing to know from inspection that the tires, already pretty well worn, could not withstand the rigors of a long journey and continuous high-speed travel. But, from the evidence, it is clear that plaintiff relief driver was equally negligent and that his negligence concurred in causing the accident. The same duty was violated by each.
[141 N.Y.S.2d 531] An operator of an automobile, be he the owner or the driver for a substantial distance, owes to himself and to others a duty of inspection and is negligent for failure to discover patent defects in equipment. See e. g. Delair v. McAdoo, 324 Fa. 392, 188 A. 181; Petersen v. Seattle Automobile Co., 149 Wash. 648, 271 P. 1001; Guile v. Snyder, 165 Ark. 221, 263 S.W. 403; Sothoron v. West, 180 Md. 539, 26 A.2d 16; 60 C.J.S., Motor Vehicles, § 260; 3 Huddy, Encyclopedia of Automobile Law (9th ed. 1932), pp. 127-128; 2 Blashfield, Cyclopedia of Automobile Law and Practice (Perm. ed.), § 821; Note, Liability For Defective Brakes In a Borrowed Car, 7 Md.L.Rev. 92. It is clear that the duty to inspect automobiles and similar equipment, dangerous only in use, ...