MB. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
This is an appeal by plaintiff from a judgment in favor of defendants.
The gravamen of the charge upon which this action rests is that the defendants, remiss in failing to make inspection, sold to plaintiff’s intestate an automobile in which there was a hidden defect which rendered the machine dangerous to human life.
The defendant Pence Automobile Company is the distributor of Buick automobiles and parts in the northwest district, which includes Montana, while defendant Butte Buick Company is a local dealer. The ear in question was shipped direct to the Butte Buick Company by the manufacturer from the factory at Flint, Michigan, upon an order which the Butte Company had given the Pence company. After the receipt of the car at Butte it was sold by the Butte company to John G. Holland, the intestate, and his brother, James J. Holland. The sale was made on June 28, 1921.
The complaint charges that before the car left the possession of the Pence Automobile Company, the toe throttle controlling the feed of gasoline to the motor had a tendency to catch, thus failing to reduce the amount of gasoline going to the motor on relieving pressure upon the throttle; that the “defect was not apparent on the face of the car to any but a skillful automobile mechanic”; that each defendant negligently failed to inspect the car for the defect before selling the same. It is alleged that while the intestate, Holland, was capable of driving the car and had skill in driving it he did not have the experience or skill necessary to detect the said defect except by actual driving and the defect was concealed from ordinary observation and the danger of the same was not appreciated by him and he believed the car ordinarily safe to drive.
The inspection given the car sold to the Hollands by the Butte Buick Company was such only as was given all new ears sold by that company, as is illustrated by the testimony of Roy Murray, president and general manager of the Butte Buick Company, speaking as a witness for plaintiff: “¥e inspect all new • cars to see that they are operating* perfectly or correctly. * * * The inspection which we give a car is an inspection to jsee whether or not the carburetor is adjusted properly so that the proper amount of gas and the proper mixture of gas and air goes into the engine, and, also to see that the brakes are in proper working order, and the spark control, and gasoline control, and to see that the car is properly oiled and filled with gasoline, and things of that character.” They gave that inspection to the car in question and found it in perfect order.
In the car sold the Hollands the flow of gasoline into the carburetor is controlled by a throttle upon which pressure is exerted by one of two devices, called the hand accelerator and the foot accelerator — otherwise called the hand throttle, and the foot or toe throttle. The foot accelerator works against a spring tension. When pressure is exerted upon it the throttle valve opens and permits gasoline to enter the carburetor. When the pressure is removed the valve should close instantly thus shutting off the flow of gasoline. The hand accelerator does not open or close the valve through tension, but by rigid action. When the valve is opened or closed by the hand accelerator it stays in that position until the accelerator is shifted. The hand and foot accelerators are complementary in a measure; they connect at the carburetor; both are a means of control over the same instrumentality. But the foot accelerator does not affect the operation of the hand accelerator while the hand accelerator does affect the foot accelerator, A witness testified: “If the foot throttle will not work, the hand throttle should. If the foot throttle would not release, the hand throttle would. The hand throttle could be released without affecting the foot throttle. If the foot throttle was
caught, the hand throttle would work. The foot throttle action doesn’t affect the hand throttle action, while the hand throttle action does affect the foot throttle action.” To state it in another way: “The hand throttle does not move at all when you work the foot throttle, but the hand throttle moves the foot throttle up and down.” If the driver accidentally or otherwise advances the hand throttle he to that extent advances the foot throttle and the foot throttle will refuse to recede until the hand throttle correspondingly recedes.
John G-. Holland was an expert automobile mechanic. He had been engaged in the work of a machinist for ten years and had worked steadily as an automobile mechanic in Butte for about a year and a half and had worked on many Buick cars which came into the garage where he was employed. In order to familiarize Holland (hereafter in this opinion Holland refers to John G-. Holland) with the running of a Buick car Murray used a “demonstrator” which was of the same model as the car sold, the only difference being that the demonstrator was a five-passenger while the car sold the Hollands was a seven-passenger car. Murray showed him how to shift the gears, how to use the throttle, and how to drive — -“everything that was necessary to handle and control the car.” The two men were riding in the demonstrator upon three occasions before the purchase of the new car was completed. On the second occasion Holland drove the demonstrator, using both the foot and the hand accelerators.
Murray testified that when the ear was delivered to Holland on the 28th of June it was in good condition; “there was nothing wrong with the foot throttle at that time to my knowledge; the fopt throttle did not at that time of my knowledge have any tendency to catch or stick. ’ ’ The ear was driven by Murray around Butte “about nine miles or so,” in company with Holland before it was delivered to him.
After the car was delivered and before the accident it was run over 700 miles. It was never returned to the place of business of the defendant Butte company for any repairs
prior to the time of the accident and no complaint was ever made about it to that company. On the afternoon of July 16, about a quarter of 5, Holland, in company with a fellow-workman, William Perry McAuliffe, also an expert automobile mechanic, started for a ride. Going up Arizona Street in Butte the foot accelerator or throttle caught. Holland said: “This foot throttle is stuck again, I took it up to them and they were supposed to have it fixed and bring it down Friday O. K. I am going to take it back to them again and talk to them.” And then he swore. McAuliffe said: “We can fix it; let’s stop and fix it.” To which Holland rejoined: “No, we will make them do it. They were supposed to do it twice, and have not done it yet.” To whom Holland referred the record does not indicate. So Holland and his companion proceeded in the direction of the Columbia Gardens Road to a point where they picked up a friend of Mr. Holland’s, Norman 0. Bongard by name. The party then returned to Butte but upon reaching Harrison Avenue took the main road to the Nine Mile House. Returning from there Holland followed what is called the upper Nine Mile Road. As he was going up an incline at a speed of about twenty-five miles per hour, the foot accelerator caught again.
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MB. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
This is an appeal by plaintiff from a judgment in favor of defendants.
The gravamen of the charge upon which this action rests is that the defendants, remiss in failing to make inspection, sold to plaintiff’s intestate an automobile in which there was a hidden defect which rendered the machine dangerous to human life.
The defendant Pence Automobile Company is the distributor of Buick automobiles and parts in the northwest district, which includes Montana, while defendant Butte Buick Company is a local dealer. The ear in question was shipped direct to the Butte Buick Company by the manufacturer from the factory at Flint, Michigan, upon an order which the Butte Company had given the Pence company. After the receipt of the car at Butte it was sold by the Butte company to John G. Holland, the intestate, and his brother, James J. Holland. The sale was made on June 28, 1921.
The complaint charges that before the car left the possession of the Pence Automobile Company, the toe throttle controlling the feed of gasoline to the motor had a tendency to catch, thus failing to reduce the amount of gasoline going to the motor on relieving pressure upon the throttle; that the “defect was not apparent on the face of the car to any but a skillful automobile mechanic”; that each defendant negligently failed to inspect the car for the defect before selling the same. It is alleged that while the intestate, Holland, was capable of driving the car and had skill in driving it he did not have the experience or skill necessary to detect the said defect except by actual driving and the defect was concealed from ordinary observation and the danger of the same was not appreciated by him and he believed the car ordinarily safe to drive.
The inspection given the car sold to the Hollands by the Butte Buick Company was such only as was given all new ears sold by that company, as is illustrated by the testimony of Roy Murray, president and general manager of the Butte Buick Company, speaking as a witness for plaintiff: “¥e inspect all new • cars to see that they are operating* perfectly or correctly. * * * The inspection which we give a car is an inspection to jsee whether or not the carburetor is adjusted properly so that the proper amount of gas and the proper mixture of gas and air goes into the engine, and, also to see that the brakes are in proper working order, and the spark control, and gasoline control, and to see that the car is properly oiled and filled with gasoline, and things of that character.” They gave that inspection to the car in question and found it in perfect order.
In the car sold the Hollands the flow of gasoline into the carburetor is controlled by a throttle upon which pressure is exerted by one of two devices, called the hand accelerator and the foot accelerator — otherwise called the hand throttle, and the foot or toe throttle. The foot accelerator works against a spring tension. When pressure is exerted upon it the throttle valve opens and permits gasoline to enter the carburetor. When the pressure is removed the valve should close instantly thus shutting off the flow of gasoline. The hand accelerator does not open or close the valve through tension, but by rigid action. When the valve is opened or closed by the hand accelerator it stays in that position until the accelerator is shifted. The hand and foot accelerators are complementary in a measure; they connect at the carburetor; both are a means of control over the same instrumentality. But the foot accelerator does not affect the operation of the hand accelerator while the hand accelerator does affect the foot accelerator, A witness testified: “If the foot throttle will not work, the hand throttle should. If the foot throttle would not release, the hand throttle would. The hand throttle could be released without affecting the foot throttle. If the foot throttle was
caught, the hand throttle would work. The foot throttle action doesn’t affect the hand throttle action, while the hand throttle action does affect the foot throttle action.” To state it in another way: “The hand throttle does not move at all when you work the foot throttle, but the hand throttle moves the foot throttle up and down.” If the driver accidentally or otherwise advances the hand throttle he to that extent advances the foot throttle and the foot throttle will refuse to recede until the hand throttle correspondingly recedes.
John G-. Holland was an expert automobile mechanic. He had been engaged in the work of a machinist for ten years and had worked steadily as an automobile mechanic in Butte for about a year and a half and had worked on many Buick cars which came into the garage where he was employed. In order to familiarize Holland (hereafter in this opinion Holland refers to John G-. Holland) with the running of a Buick car Murray used a “demonstrator” which was of the same model as the car sold, the only difference being that the demonstrator was a five-passenger while the car sold the Hollands was a seven-passenger car. Murray showed him how to shift the gears, how to use the throttle, and how to drive — -“everything that was necessary to handle and control the car.” The two men were riding in the demonstrator upon three occasions before the purchase of the new car was completed. On the second occasion Holland drove the demonstrator, using both the foot and the hand accelerators.
Murray testified that when the ear was delivered to Holland on the 28th of June it was in good condition; “there was nothing wrong with the foot throttle at that time to my knowledge; the fopt throttle did not at that time of my knowledge have any tendency to catch or stick. ’ ’ The ear was driven by Murray around Butte “about nine miles or so,” in company with Holland before it was delivered to him.
After the car was delivered and before the accident it was run over 700 miles. It was never returned to the place of business of the defendant Butte company for any repairs
prior to the time of the accident and no complaint was ever made about it to that company. On the afternoon of July 16, about a quarter of 5, Holland, in company with a fellow-workman, William Perry McAuliffe, also an expert automobile mechanic, started for a ride. Going up Arizona Street in Butte the foot accelerator or throttle caught. Holland said: “This foot throttle is stuck again, I took it up to them and they were supposed to have it fixed and bring it down Friday O. K. I am going to take it back to them again and talk to them.” And then he swore. McAuliffe said: “We can fix it; let’s stop and fix it.” To which Holland rejoined: “No, we will make them do it. They were supposed to do it twice, and have not done it yet.” To whom Holland referred the record does not indicate. So Holland and his companion proceeded in the direction of the Columbia Gardens Road to a point where they picked up a friend of Mr. Holland’s, Norman 0. Bongard by name. The party then returned to Butte but upon reaching Harrison Avenue took the main road to the Nine Mile House. Returning from there Holland followed what is called the upper Nine Mile Road. As he was going up an incline at a speed of about twenty-five miles per hour, the foot accelerator caught again. When the accelerator did not release, the car lunged forward at an increased speed. Here the situation was made more difficult by ruts in the road caused probably by the passage of heavy trucks. Holland stooped to release the accelerator; indeed it is probable that both Holland and McAuliffe stooped at the same time, although the record as do this is not clear. At any rate Holland lost control of the ear which ran upon the bank and turned over. The three men were thrown out of the car and rendered unconscious. Holland died the next day.
Some time after the accident Murray examined the wrecked car at Murphy’s garage, which was where Holland had been employed. Murray found the foot accelerator “in perfect condition; it was not damaged and was not sticking in any way.”
At the conclusion of plaintiff’s proof the court sustained motions for nonsuit interposed by the defendants.
The very able briefs of counsel have covered pretty thoroughly the whole field in which the liability of manufacturers and vendors for negligence in the construction or sale of their articles has been considered. But we need not enter that field at all; perhaps it were better to say we are not permitted to enter it. After a careful consideration of the evidence we are convinced that reasonable men of fair and unbiased minds can reach but one rational conclusion upon it.
Presuming that the foot accelerator, or throttle, was defective as alleged the fact remains that Holland, knowing full well the existence of the defect, continued to drive the car. It will not do to say that he did not know and appreciate the danger. The admitted facts lead irrefutably to a contrary conclusion. An inexperienced driver would know — anyone with common sense would know — that if by reason of the defect in the control of the power of the engine could not be curbed danger would result. (Assuming here that he did not know he could exercise control by the hand accelerator, or throttle.) Holland, however, was an expert automobile mechanic, skilled in the repair of Buick automobiles. The foot accelerator had caught on two former occasions to his knowledge. Upon the third occasion when he was accompanied by a friend who was also an expert automobile mechanic, the friend said to him, “We can fix it; let’s stop and fix it,” but Holland rejected the offer and continued upon his pleasure ride.
In the complaint, as we have seen, plaintiff averred that the defect was not apparent on the face of the car to any but a skillful automobile mechanic. The proof showed Holland was an expert automobile mechanic. Further, plaintiff averred that while Holland had skill in driving the car he did not have the skill necessary to detect the defect except by actual driving; the proof showed that he had possession of the ear for eighteen days during which it was run over 700 miles, and that he knew the accelerator had caught on two former
occasions; that at the beginning' of the ride which was to prove fatal he was driving the car, had actual knowledge of the condition of the foot throttle, and with another skilled mechanic at hand refused to remedy the defect. Under these circumstances it must be admitted that in continuing to drive the car after he had actual knowledge of the defect Holland proceeded not with ordinhry care and prudence, but carelessly, recklessly. “When the circumstances attending the injury, as detailed by the plaintiff’s evidence, raise a presumption that he was not, at the time, in the exercise of due care, he has failed to make out a case for the jury.”
(George
v.
Northern Pac. Ry. Co.,
59 Mont. 162, 196 Pac. 869.)
It is the settled rule in this jurisdiction that whenever the plaintiff’s own case presents evidence which unexplained makes out
prima facie
contributory negligence upon his part, there must be further evidence exculpating him, or he cannot recover.
(Harrington
v.
Butte, A. & Pac. Ry. Co.,
37 Mont. 169, 16 L. R. A. (n. s.) 395, 95 Pac. 8;
Longpre
v.
Big Blackfoot Milling Co.,
38 Mont. 99, 99 Pac. 131;
Meehan
v.
Great Northern Ry. Co.,
43 Mont. 72, 114 Pac. 781;
Molt
v.
Northern Pac. Ry. Co.,
44 Mont. 471, 120 Pac. 809;
Neilson
v.
Missoula Creamery Co.,
59 Mont. 270, 196 Pac. 357;
Cameron
v.
Judith M. & C. Co.,
61 Mont. 118, 201 Pac. 575;
Puckett
v.
Sherman & Reed,
62 Mont. 395, 205 Pac. 250.) The record does not disclose explanatory evidence of the requisite character.
If upon plaintiff’s proof the court had submitted the case to the jury, and the jury had found for the plaintiff, the court would have been obliged to set the verdict aside.
The judgment is affirmed.
Affirmed.
Associate ’Justices Holloway, Stake and Matthews and Honorable C. W. Pomeroy, District Judge, sitting in place of Mr. Justice Galen, absent on account of illness, concur.