Mildred Gowins, plaintiff, brought this action against John L. Merrell, Jr., defendant, and Tink Wilkerson Chrysler Motor Company [Chrysler], for damages incurred when bus driven by defendant collided with automobile plaintiff was driving. Trial court sustained plaintiff’s motion for directed verdict against defendant on issue of liability. It submitted issue of damages and issue of Chrysler’s liability to jury. The jury returned verdict of $7,000 for plaintiff against defendant only. Defend *859 ant appeals. The Court of Appeals, Division 1, affirmed, and defendant seeks cer-tiorari.
Defendant first contends trial court erred in directing verdict for plaintiff on issue of liability.
In passing upon motion for directed verdict, trial court should consider as true all evidence favorable to party against whom motion is directed, together with all inferences reasonably to be drawn therefrom, and should disregard all conflicting evidence favorable to movant.
Gwinn v. Payne,
Okl.,
Plaintiff’s petition alleged defendant was negligent in (1) failing to maintain such proper care and control of operation of his vehicle upon public highways as a reasonable prudent person would have done under like circumstances, (2) in operating vehicle at speed greater than was reasonable and proper under existing conditions and circumstances, (3) failing to keep such control over vehicle, and operating same at speed greater than would permit him to bring same to full stop within assured clear distance ahead.
Defendant’s answer denied allegations of negligence in petition and alleged accident resulted from unavoidable casualty occurring through no fault of defendant.
The evidence indicates plaintiff stopped her automobile behind a truck at a turnpike toll gate. Defendant was driving bus in same lane behind her. The brakes on bus failed and the bus struck rear of plaintiff’s car. Plaintiff suffered whiplash.
Defendant testified the bus was owned by a church which had employed him as music director for four or five months prior to accident. He had driven bus on average of twice each month.
He had more opportunities to drive bus than other persons but other people could drive it if they obtained permission. He testified he was not responsible for maintenance of the bus.
Before leaving on trip, he usually checked brakes and horn while bus was in parking lot. On day in question he was taking group of children to Muskogee to sing. At about 4:30 P.M., they boarded bus at church and left. He had no problems with brakes and made one complete stop and used brakes to slow down on numerous occasions. He was traveling about 50 or 55 miles per hour when he saw sign indicating he was one mile from toll gate. He took foot off of accelerator. He applied brakes when he was about one block, or 200 feet, from toll gate. At that time bus was going 20 to 25 miles per hour. The brake pedal went all the way to floor. He pumped brake and attempted to stop bus by shifting to lower gear. He had one foot on brake, one hand on steering wheel, and one hand on gear shift lever.
He used up one half of distance pumping brakes. The bus had an emergency brake but he did not have time to think of it.
He did not remember if lane to left of lane in which he was traveling was open. He was concentrating on stopping bus and only saw cars in front of him and large concrete pillars on right side of road.
He testified he imagined he panicked a little.
Other evidence indicated there was opening in pillars which defendant could have driven through, and he could have swerved to left and gone through other toll gate.
After accident he examined bus and determined he had lost brakes because of hole in brake line which allowed brake fluid to escape.
The area surrounding hole was brown and looked as if it had been burned. The only thing he observed which could have caused heat on the hose was the tail pipe. At that time tail pipe was touching brake line. Chrysler had worked on tail pipe about a week before accident. The accident occurred at approximately 5:20 P.M.
A highway patrolman testified he was parked beside road about 210 feet from turnpike gate. When the bus passed its door was closed but he could see driver *860 through glass. Driver appeared to he pumping brake and he heard noise which sounded like someone hitting floorboard. He saw fluid flying from back of bus. The bus was traveling 20 to 25 miles per hour and the driver looked panicky.
After accident he examined brake line and it was ruptured. The line was grayish black. It was not touching anything and was not more than four inches from tail pipe.
The service manager for Chrysler testified Chrysler worked on bus about a week before accident. They installed new tail pipe and worked on motor.
He examined bus after accident and tail pipe was about 3" to 5" from brake line hose. The brake line was old.
He .examined brake line hose on day after accident and observed dark spot on hose which was probably caused by heat. In his opinion even if hose had been touching tail pipe, tail pipe would not have burned hole in brake line in 40 minutes to an hour.
The mechanic who installed tail pipe testified he installed it in original brackets which were 4" to 6" from brake line.
In his opinion tail pipe could have burned hole in brake line if brake line was old and had touched tail pipe for an hour. The tail pipe was only thing in area which produced heat.
Defendant’s liability could be based upon theory he was responsible for brake failure and it was proximate cause of accident, or theory he was negligent in controlling vehicle after brake failure occurred.
47 O.S.1971 § 12-301 (a) requires every motor vehicle operated upon a highway to be equipped with brakes adequate to control movement of and to stop and hold such vehicle, including two separate means of applying brakes.
We have held owner of automobile must exercise ordinary care to insure it is not in such condition as to become dangerous for use upon public highways, and his failure to use such care, and permitting vehicle to be used upon public highways is negligence.
Bush v. Middleton,
Okl.,
If owner properly maintains brakes, he will not be liable for damages resulting from unexpected brake failure if he acts as a prudent person after failure occurs.
Weaver v. Hoster,
Okl.,
Cases from other jurisdictions have adopted various rules with respect to brake failure. See Annotation, Automobiles-Liability-Defective Brakes,
Most cases have not distinguished between liability of owner of automobile and liability of operator who is not owner of automobile.
In
John W. Simmons Trucking Co. v. Briscoe,
Okl.,
In
Bryant v. Chasteen,
“Here the defendant had merely borrowed the car, and there was no evi *861 dence that she had any indication the brakes were defective up to the moment of the failure. In fact, her testimony that she had made several stops just prior to the failure was completely undisputed. The evidence was sufficient to support the verdict.”
In
Harkins v. Doyle,
Or.,
The court instructed jury on statute requiring motor vehicles operated on highways to be equipped with brakes adequate to control movement of and to stop the vehicle and instructed that violation of statute was negligence in and of itself unless defendant proved by the evidence he was acting as a reasonably prudent person under the circumstances. The court further instructed jury that defendant’s negligence, if any, in operating the vehicle without adequate brakes and running the red light would depend on whether jury found “he knew or should have known that the brakes * * * were * * * faulty prior to the incident * * * In other words, Defendant would be negligent only if he failed to act as a reasonably prudent person under the same or similar circumstances.”
In affirming a verdict for defendant the court considered these instructions and stated:
“The vehicle was * * * owned by defendant’s brother. Prior to the accident, defendant had driven the car to work and then from Corvallis to Albany and return. During this period the brakes operated properly, both to control and stop the car. Therefore, we find no error in this portion of the instruction given.”
In the present case defendant was not owner of the bus, but had driven it on numerous occasions. He had driven bus for 40 minutes to one hour prior to accident and brakes worked properly. He had no prior warning of defects in the brakes.
Under these circumstances we conclude plaintiff was not entitled to directed verdict on theory defendant was responsible for brake failure.
Trial, court ruled defendant only set up defense that accident was unavoidable casualty occurring through no fault of defendant. He noted defendant’s testimony was to effect defendant could have avoided accident but would have had to hit cement pillars. He concluded that since defendant could have avoided accident, it was not unavoidable accident.
Cases from other jurisdictions hold driver of automobile on which brakes fail has duty to exercise degree of care that could be exercised by ordinarily prudent person under same or similar circumstances.
McCleary v. Mowery,
Further, it has been held that whether failure to swerve or apply emergency brake constitutes negligence is for jury.
In
Daigle v. Prather,
In
France v. Peck,
*862 The appellate court reversed directed verdict for plaintiff, stating:
“Furthermore, Peck’s failure to sound his horn or apply his emergency brake cannot support the trial court’s ruling. Whether it was possible or reasonable to do so in three to four seconds was likewise a question for the jury * * * ”
In
Trudeau v. Sina Contracting Co.,
In
Swope v. Fallen,
Ky.,
We conclude issue of whether a reasonably prudent person in defendant’s position would have swerved, or applied emergency brake, was a question of fact for jury to determine.
Certiorari granted, opinion of Court of Appeals vacated, and judgment of trial court reversed and remanded with directions to grant defendant a new trial!