Dziabas

Plaintiffs Mr. and Mrs. Herbert Lee Clark brought this action to recover damages for injuries to their persons and property incurred in an automobile accident. They appeal from an adverse judgment and from an order denying their motion for judgment notwithstanding the verdict on the issue of liability.

Mr. Clark was driving and Mrs. Clark was riding in the right front seat at the time of the accident. They had stopped at an intersection to wait for the traffic signal to change when defendant’s car struck their car from the rear.

Defendant testified that his brakes failed when he stepped on his brake pedal in response to the traffic signal and plaintiffs’ stopping ahead of him. He swerved to the right but was unable to avoid a collision. He had no reason to know that his brakes were defective until they failed. The failure was caused by a rupture in a hydraulic line that gave defendant no warning of its impending occurrence. About six months before the accident he had the brakes overhauled by the automobile agency that had sold him the car, then a 3-year-old used car, about a year before the accident. About five weeks before the accident, defendant asked the attendants at the…

I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Frampton in the opinion prepared by him for the Court of Appeal, Second Appellate District, Division Three (Clark v. Dziabas, 2 Civ. 30945, filed February 29,1968, certified for nonpublication).