This is a personal injury action brought by appellee, Nadeen A. Brown, against appellants, Greyhound Corporation and Goodyear Tire & Rubber Company, in the circuit court of Jefferson County. The case arises out of an accident which occurred on a public highway in Jefferson County about 25 miles north of Birmingham. At the time of the accident plaintiff was a paying passenger on one of Greyhound's buses proceeding towards Birmingham. The right front tire of the bus blew out in rounding a curve, thus causing the bus to plunge down a ravine and roll over several times. Plaintiff was seriously injured. The jury returned a verdict in her favor for $15,000 against both defendants. Judgment on the verdict was duly entered. The defendants' separate motions to set aside the verdict and judgment and grant each of them a new trial being overruled, they brought this appeal.
The case went to the jury on amended counts 2, 3 and 4. In substance, each of said counts charges Goodyear with negligence which combined and concurred with Greyhound's negligence so as to injure plaintiff. As against Greyhound, the gravamen of all three counts is Greyhound's negligence as a common carrier of passengers for hire. As against Goodyear, the several counts charge negligence as follows:
Count 2 alleges, in substance, that Goodyear manufactured a tire and supplied it to Greyhound, a common carrier of passengers for hire, which tire was in use on the bus involved in the accident complained of; that said tire, when so supplied, was not reasonably safe for such use on said bus but to the contrary was imminently dangerous when used for such purpose; that said danger was known to Goodyear, or by the exercise of reasonable diligence should have been so known to it, but was not known to plaintiff and was not revealed to plaintiff by Goodyear or by anyone else; that, at the time of the accident the said tire, as a proximate consequence of its said imminent dangerous condition, had a blowout, and
Count 3 alleges, in substance, that Goodyear, prior to the accident, undertook with Greyhound, in writing, to furnish for buses belonging to Greyhound sufficient tires to meet the requirements of said buses in a condition fit and suitable for such use and to furnish inspection and repair service adequate to maintain said tires in a condition safe and suitable for such use; that Goodyear undertook, in writing, with Greyhound to determine when tires furnished by Goodyear to Greyhound were permanently unfit for further service and in such cases to furnish new tires in lieu thereof; that at the time of the wreck there was in use on the bus a tire manufactured by Goodyear and supplied by it to Greyhound for use on said bus under said written undertaking; that on the occasion of the wreck Goodyear negligently failed to furnish a reasonably adequate repair and inspection service for said tire, and as a proximate consequence of its said negligence said tire, at the time of the wreck, "was not in a condition reasonably safe and suitable for use for the purpose for which it was supplied and intended to be used, but to the contrary was imminently dangerous when used for the purpose and in the manner for which it was supplied and intended to be used in that the fabric of said tire was so weak that it was imminently and dangerously likely to sustain a blowout when used in the customary and intended manner on the highway"; and that said tire sustained a blowout proximately causing the bus to be wrecked on the occasion complained of.
Count 4 alleges, in substance, that Goodyear was engaged in the business of manufacturing tires and supplying them to Greyhound for use on its motor buses; that on the occasion of the wreck Goodyear had manufactured and supplied to Greyhound one of the tires in use on the bus; that Goodyear "had retained the title to said tire and had retained control and responsibility for the condition and state of repair of said tire under the terms by which said defendant Goodyear had supplied said tire to said defendant Greyhound"; that under said terms Goodyear had undertaken to maintain and inspect said tire in a condition fit and suitable for the purpose for which it was delivered and intended to be used as a tire on a motor bus engaged in the carriage of members of the public, including the plaintiff, in the business of Greyhound, as a common carrier of such passengers for hire; that Greyhound paid Goodyear for the use, inspection and maintenance of said tire on a mileage basis; that on the occasion complained of said tire had a blowout and as a proximate consequence thereof said bus was wrecked and plaintiff injured and damaged; that on said occasion Goodyear "negligently continued to furnish and maintain said tire for the use and purpose aforesaid upon said bus in a condition not reasonably safe for said use for which it was intended and supplied, but to the contrary, negligently continued to furnish and maintain said tire in a condition which was defective to the extent that it was dangerously weak or worn and that it was dangerously likely to blow out when used for the customary and intended purpose which it was furnished and supplied by the defendant Goodyear"; that "as a proximate consequence of said negligence of the defendant Goodyear and of the said unsafe and defective condition, said tire did blow out on said occasion and as a proximate consequence thereof said wreck occurred and the plaintiff was injured and damaged as aforesaid."
The defendants' separate demurrers to these counts were overruled. Defendants
No argument is here made questioning the rulings on the demurrers to the complaint. Nor is any question raised as to excessiveness of the verdict.
We discuss first the questions pressed upon us by Greyhound. Although it assigns 58 grounds of error, only two points are argued in brief. One charges error in a portion of the trial court's oral charge to the jury and the other concerns the refusal of one of Greyhound's requested written charges.
Exception was taken by Greyhound to the following portion of the oral charge:
It is insisted that it was error to so charge the jury because, under the doctrine of res ipsa loquitur, the burden of going forward shifts but not the burden of proof. Relied on in support of this are Florence Coca Cola Bottling Co. v. Sullivan, 259 Ala. 56, 65 So.2d 169, and Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257. While those cases recognize the principle insisted upon, they are not applicable in the instant case. In this jurisdiction there is a well-recognized exception to the rule when the defendant is a common carrier of passengers for hire. See Southeastern Greyhound Lines v. Callahan, 244 Ala. 449, 454, 13 So.2d 660, 663, where, in a case involving injury to a passenger caused by a defective seat, it was said:
See, also, Nelson v. Lee, 249 Ala. 549, 560, 32 So.2d 22, where the holding in the Southeastern Greyhound Lines case was recognized.
We find no merit in Greyhound's insistence with respect to the oral charge.
Greyhound's requested written charge No. 10, refused by the trial court, is as follows:
No contention is made by Greyhound that it was entitled to a directed verdict, nor that, under the evidence, the verdict as to it was against the weight of the evidence.
With respect to Goodyear, the ultimate and decisive question, it seems to us, is whether the tire failure was due to a defect in its manufacture or was caused by a road hazard, specifically, by an external object striking the tire while being used on the road by Greyhound, so weakening the tire as to cause it to deteriorate and blow out at the time of the wreck. In this connection, it is to be observed that the so-called "manufacturer's liability doctrine", which was fully expounded by Judge Cardozo in the celebrated case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440, has been approved in this jurisdiction. Defore v. Bourjois, Inc., 268 Ala. 228, 105 So.2d 846; Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245, Sterchi Bros. Stores v. Castleberry, 236 Ala. 349, 182 So. 474; Altorfer Bros. Co. v. Green, 236 Ala. 427, 183 So. 415; Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72, 61 A.L.R. 1333. In Defore v. Bourjois, Inc., supra, [268 Ala. 228, 105 So.2d 848] application of the doctrine was said to apply
We have here a situation where the manufacturer (Goodyear) owned the tire when plaintiff was injured, although it was being used by Greyhound under a lease agreement with Goodyear. No point is made that this situation in any way affects applicability of the manufacturer's liability doctrine.
There can be no doubt that plaintiff, as a passenger on the bus, could reasonably be expected to be endangered if the tire, while being used on the bus, was in fact defective. In this connection we note that there appears to be no serious dispute that the wreck resulted from a defect in the tire. If the tire failure was due to a defect in its manufacture and not the road hazard then, of course, there would be no occasion to discuss Goodyear's insistence that the road hazard constituted an independent intervening cause so as to relieve Goodyear of liability.
We have carefully considered the evidence. It is voluminous and by no means without conflict. While there is evidence from which the jury could have
No good purpose would be served by discussing the evidence in detail. It is sufficient to note that both the plaintiff and Goodyear had witnesses (no question being raised on the trial as to their qualifications) who testified as to the cause of the tire failure. The evidence offered by plaintiff tended to prove that it was caused by a defect in its manufacture, while the testimony of Goodyear's witnesses was to the effect that an external defect or break in the tread, caused by striking a sharp object, was the cause. The resolvement of this issue was one typically for the jury.
There was evidence to the effect that a driver of the bus noticed a small plug of rubber out of the tire in Nashville before proceeding on to Birmingham. He testified, however, that he did not consider such condition to be dangerous. This simply presented additional evidence bearing on the factual issue as to the cause of the blowout. That is, if the injury to the tire, as observed by the driver, was the cause of the tire's failure at the time of the wreck then, of course, an entirely different situation would be presented concerning Goodyear's liability. But the jury obviously resolved this issue against Goodyear and found, as already noted, that the cause of the tire's failure was a defect in the manufacture of the tire; such finding being supported by the evidence.
Goodyear's requested affirmative charges with hypothesis were properly refused. As said in McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135, 139:
From what we have said it follows that the judgment appealed from is due to be affirmed. So ordered.
LAWSON, STAKELY and MERRILL, JJ., concur.