APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 72-1364.
Seitz, Chief Judge, Rosenn and Garth, Circuit Judges.
This appeal is from a judgment for the defendant in a diversity action arising out of a rear-end highway collision in Baltimore, Maryland. An automobile driven and owned by defendant Williams struck the rear of an automobile occupied by the plaintiffs, Anthony J. Melchiorre, Alfia P. Cavallaro, and Richard C. Cavallaro, when their car was stopped at the toll plaza of the Baltimore Harbor Tunnel. The occupants of the forward car, all Pennsylvania residents, brought suit against Williams for damages for personal injuries in the United States District Court for Eastern Pennsylvania.*fn1 The jury, after returning twice for further instructions, found Williams, who claimed that his brakes had suddenly failed to function, not negligent in response to a special interrogatory. The plaintiffs moved for a new trial, contending that the district court erred in its instructions to the jury on the defense of brake failure and on the emergency doctrine and that the verdict was against the law and the weight of the evidence. The district court denied the motion, and plaintiffs appeal. We reverse and remand for a new trial on the ground that the court's instructions to the jury were erroneous.
The collision occurred on July 24, 1970, when Williams attempted to apply his brakes as he descended a grade approaching the toll plaza area. He testified that as he applied the brakes, the pedal went down to the floor with no effect. Confronted with this situation, he attempted to avoid collision with other vehicles in the area but nevertheless his automobile struck the concrete traffic island and two automobiles at the toll plaza, one of which was occupied by the plaintiffs.
Williams testified that his automobile had passed New York state inspection two months before the accident. He further testified that, before leaving on the first leg of his trip from New York to Virginia, he had requested a service station attendant in New York to check his automobile, including its brakes. He also stated that prior to his departure from Virginia on the day of the accident, he himself had checked the brake fluid and had found it to be full. Thus, he claimed that the brake failure was a sudden emergency and not due to negligence on his part.
The district court properly applied Maryland law to this diversity action. This court has recently instructed those district courts which are guided by Pennsylvania conflict-of-law rules in tort actions to apply the "law of the predominantly concerned jurisdiction, measuring the depth and breadth of that concern by the relevant contacts each affected jurisdiction had with the specific transaction." Suchomajcz v. Hummel Chemical Co., 524 F.2d 19, 23 (3d Cir. 1975). The collision took place in Maryland, and Pennsylvania usually would consider the site of the tort to be the jurisdiction most concerned with the duty of the care owed by an automobile operator to others lawfully on the highway.*fn2 Thus, we must look to the law of Maryland as it pertains to the defense of sudden brake failure in a suit for personal injuries arising from an automobile accident.
II. BRAKE FAILURE INSTRUCTIONS
Maryland cases establish that a defense of sudden brake failure indicates prima facie a violation of Article 66 1/2, Annot. Code of Md. Vehicle Laws.*fn3 If the violation thus shown is found to be the proximate cause of the accident, the then permissible inference of negligence "must be controverted by a showing of adequate inspection and a sudden unexpected failure." Miller v. Reilly, 21 Md. App. 465, 319 A.2d 553, 559 (1974), quoting from Wood v. Johnson, 242 Md. 446, 219 A.2d 231, 235 (1966); accord, Currie v. United States, 201 F. Supp. 414, 417 (D. Md. 1962), aff'd, 312 F.2d 1 (4th Cir. 1963); Mintzer v. Miller, 249 Md. 506, 240 A.2d 262, 264 (1968). This showing by the defendant must be proven by a preponderance of the evidence. Wood, supra, 219 A.2d at 235.
The court instructed the jury that Williams, after asserting a defense of brake failure, had the duty to show:
that he made a skillful and careful inspection and that the defect was of such a nature that it would not have been disclosed by such inspection.
These instructions were taken verbatim from plaintiffs' proposed points for charge and are derived from Currie v. United ...