Aсtion for $20,000 damages for personal injuries for negligently furnishing plaintiff a dangerous golf cart. Verdict and judgment were for defendant, but plaintiff received a new trial for errors in connection with Instruction 8 given at defendant’s request.
Upon oral argument appellant conceded that the сourt committed error in giving Instruction 8 and thus waived and abandoned that portion of its brief, leaving only its contention that any such error was harmless because it should have had a directed verdict at the close of the evidence for the reason that “the evidence failed (I) to prove any negligence on the part of defendant which was the proximate cause of plaintiff’s injury,” and (II) “to prove any knowledge, actual or constructive of the alleged defect prior to plaintiff’s injury.”
On August 11, 1964, plaintiff, age 14, his stepfather, Joseph L. Orlando, and his stepfather’s brothers, Williе and James Orlando, were at defendant Bogey Hills Golf and Country Club, Inc., for the purpose of playing golf on defendant’s golf course. Joseph Orlando went to the pro shop and paid $22.00 for rental of two golf carts and registration fees for the foursome. When he came from the prо shop two golf carts had been parked there by defendant’s employee, Michael Schwieghauser. No warning was given to plaintiff or the other members of the foursome of any defective brakes on either cart. Willie and James Orlando paired on one cart and plaintiff rоde with his father driving the other, which was designated number 5 by defendant. Plaintiff’s cart was a Laher electric golf cart, Number 6192MP, equipped with mechanical brakes. It had been used at another country club for three years prior to its purchase by defendant May 5, 1964. Although Orville Hahn, defendant’s greenskeеper, said that he checked the brakes on number 5 and found them all right when it was purchased, and that he lubricated and inspected it as a regular procedure about every two weeks, defendant, in answer to an interrogatory, stated no “maintenance, mechanical work, repair jobs or replacement of parts” had been performed by defendant on number 5 between the date of its acquisition and August 11, 1964.
It was Mr. Hahn’s duty to maintain golf carts for defendant and they, including number 5, were in service five days a week; however, he had never adjusted the brakes on number 5, did not check its brakes August 11, 1964, and, upon driving number 5 when returned after the accident, admitted that its brakes “could use an adjustment.”
Michael Schwieghauser was 14 or 15 years of age on August 11, 1964. He
Joseph Orlando drove cart number 5 until the fifth hole of the first nine. During that time he found that the brakes would not lock the wheels of the cart and would only bring it to a “rolling stop.” He had no occasion to make a hard оr emergency application of the brakes.
Plaintiff requested permission from his father to operate the cart at the fifth hole. His father asked him to demonstrate his ability to operate the cart which he did to his father’s satisfaction. Plaintiff had previous experience with traсtors, power mowers and electric carts at amusement parks which were brake-accelerator operated like the golf cart. Plaintiff began driving at the fifth hole and continued until the third hole of the second nine. During the play on that fairway one of plaintiff’s uncles lost a golf ball at the bottom of a hill. Plaintiff remained seated on the cart while the others of the foursome looked for the ball. The cart was parked or stopped with the brake fully depressed when it started rolling downhill. Plaintiff removed his foot a bit and then pushed down on the brakes several times with nо result. The cart did not stop and crashed through a barbed-wire fence at the bottom of the hill, causing plaintiff to be severely injured.
James Orlando returned cart number 5 to the clubhouse and, in the course of driving it, found there were no operative brakes. He applied the brakes at lеast three times and, on each occasion, the pedal went to the floor and the brakes gave no resistance. He called this to the attention of Orville Hahn. Mr. Hahn “did go over and attempt to apply the brakes and I don’t recall his statement but it was either that there was no brаkes or the brakes were bad or the brakes were faulty, something like that.”
The brakes were not adjusted in any way following the accident and, on August 13, 1964, Joseph O’Toole, Jr., an investigator for plaintiff, drove the cart and determined that the pedal “went possibly within an inch of the floor,” and at no time while he was operating the cart did the brakes lock the wheels or completely stop the cart.
On August 19, 1964, Otto Swyers, Jr., of Auto Damage Appraisers, employed by defendant, tested the brakes on the cart and found “they may have needed an adjustment.” He found the cart to have somе brake pedal and he skidded its wheels on an asphalt surface.
On August 18 or 19, 1964, Orville Hahn brought the cart to a stop on the hill where plaintiff’s accident occurred.
Edward Bilhorn, a consulting engineer, was called as an expert witness by plaintiff. He stated the braking mechanism on the cart in question to be readily accessible for inspection, and that inspection is a simple procedure requiring about two minutes to perform. The function of the mechanical brakes is to lock the wheels of the cart. In answer to a hypothetical question, he stated his opinion that within reаsonable engineering certainty the brakes on the cart were improperly adjusted and that this defect had existed for several weeks and could have been determined by an inspection.
Plaintiff made his case on the most favorable view of this evidence, and it was for the jury to sаy whether the golf cart furnished plaintiff by defendant had inadequate brakes which rendered the cart dangerous; whether defendant knew, or in the exercise of ordinary care should have known, of such dangerous condition; whether plaintiff did not know, in the exercise of ordinary care, of the dangerous condition ; whether defendant failed to warn of
Spelky v. Kissel-Skiles Co., Mo.App.,
Appellant’s argument of failure to show proximate cause is that Mr. Bilhorn, upon whom plaintiff relied to show proximate cause, “testified as to three possible causes for the alleged brake failure, thereby being void of any reasonable degree of certainty to the negligence submitted.”
After a comprehensive hypothetical question concerning the brakes on the cart in question, Mr. Bilhorn was asked: “* * * do you have an opinion, within reasonable engineering certainty, as to what defects, if any, there were on this cart? * * *
THE WITNESS: Yes, sir.
“Q What was that defect? A Improper adjustment, primarily. Q You say ‘primarily’ — there is an inference that there is some secondary defect. A Lack of lubrication is another example or— Q (interrupting) Lack of lubrication ? A (continuing) — improper adjustment. Q Improper adjustment— A (interrupting) Yes. Q (continuing) — is your primary ? A Yes. Q And lack of lubrication— A (interrupting) Could be another cause for the malfunction.
“Q Any other cause? A An actual disconnecting or a parting of the linkage between the foot pedal and the brake. Q Now, within reasonable engineering certainty, how long would a defect of this kind have existed? A I would say probably several weeks.
“Q Now, is that with reference to the improper adjustment? A Yes. Q And lack of lubrication? A Yes. Q And
“Q Now, with reference to the improper adjustment and lack of lubrication, how could those defects havе been determined? A By inspection. Q Now, with reference to this particular cart, what is involved in an inspection of that kind? A Either of two things- — one is to set in the seat and depress the pedal and see whether you have a tight pedal. You can push the pedal all the way and lock the whеels. The other would be to raise the rear deck and the cable and the brake backing plate are available within reach. * * * Q How long would it take, in terms of time, to make such an inspection? A Not over two minutes.”
This extract demonstrates with reasonable certainty and without resоrt to guesswork or speculation that the defect in the brakes on the cart was “improper adjustment” which Mr. Bilhorn characterized as the “primary” defect. He specifically “excluded” parting of the linkage between brake pedal and brakes as any part of his opinion оn causation, and his evidence on discovery of defect by simple inspection related only to improper adjustment.
Appellant’s citations do not support his argument because in Phillips v. Carroll, Mo.App.,
Appellant’s second argument against sub-missibility of рlaintiff’s case is that since there was no evidence that defendant had actual knowledge of any defect, plaintiff had the burden and failed to prove “that a reasonable inspection would have discovered the defect and that Defendant failed to make such a reasonable inspection.”
The extract from Mr. Bilhorn’s testimony demonstrates not only the primary defect of the cart, improper adjustment of its brakes, but also that it had existed “several weeks,” certainly time enough to warrant an inference that routine inspection would have revеaled the defect had inspection been performed in the simple manner described by Mr.- Bilhorn. Appellant emphasizes his argument by directing attention to testimony from which the jury could find that defendant did regularly inspect its carts; however, in a view of the evidence most favorable to plaintiff, there was evidence from which the jitry could infer lack of inspection for a period of time in which, had inspections been made, the improper adjustment of the brakes could have been noted and corrected.
Appellant’s citations to this argument also are distinguishable. In Lowes v. Union Electric Co., Mo.App.,
Judgment affirmed.
PER CURIAM:
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.
All concur.