Darryl Clayton v. LLB Timber Company, Inc. and William George Henderson

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REL: 01/14/11 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter o f Decisions, A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2010-2011 1091427 Darryl Clayton v. LLB Timber Company, I n c . , and W i l l i a m George H e n d e r s o n Appeal LYONS, Clayton verdict Timber"), claims Court Justice. Darryl jury from Montgomery C i r c u i t (CV-08-1517) appeals i n favor from a judgment o f LLB Timber entered Company, a n d W i l l i a m G e o r g e H e n d e r s o n on C l a y t o n ' s against them. Clayton contends that upon Inc. a ("LLB negligence the t r i a l court 1091427 improperly that charged the t r i a l new t r i a l . court We On O c t o b e r Florida, a had i n denying Background 23, 2006, load bunk from Chicago, truck, the truck beds left stop stop f o r that that he r e c a l l e d he p a r k e d stop hearing on t h e t r u c k The brakes Henderson's a few Henderson chose a d r i n k was g o n e . driver Tallahassee, After Clayton time later, f o r LLB Timber, drove h i s Henderson Henderson testified at he s e t t h e b r a k e s ; he when truck weeks parked and went i n t o t h e s t o r e o f the d i s t i n c t a i r brakes just to Some i n Hope H u l l . the truck the on truck i n Hope H u l l . purpose. t o buy a d r i n k . when to the counter, f o ra History Illinois, the engine running, that installed motion he t o o k a n a p i n t h e b a c k o f i t s c a b , w h e r e t o t h e same t r u c k his Clayton's f a i l u r e and a commercial Henderson, a commercial t r u c k d r i v e r truck mechanical and P r o c e d u r a l Clayton, stopped at a truck parked h i s truck, he erred regarding reverse. Factual delivering the jury popping the parking were before. new; trial stated sound made b y brake i s they Inside had the and went t o p a y t h e c l e r k . set. been store, On h i s w a y he g l a n c e d o u t t h e d o o r a n d s a w t h a t h i s t r u c k H e n d e r s o n s t a t e d t h a t he i m m e d i a t e l y l e f t 2 the store 1091427 to see what across the Clayton nap parking when he On seeking the to the set theories accident. that he Clayton did not he out Clayton and and the on left and LLB Timber that he suffered was know truck. certain that what had H e n d e r s o n a l s o s t a t e d t h a t he had window of his another he had truck. Timber he and claims and received as presented at suffered as serious a result maintained only negligently set his of that minor or Henderson caused not his wantonness shoulder his from facts t h a t he parked. stating claimed of rolled was LLB Court, negligence had awaked the sued a r g u e d t h a t H e n d e r s o n had brakes that and truck been s t r u c k by claimed neck, truck just looked Most 1 Henderson Clayton repeatedly of injuries malingering the had Circuit h i s back, was injuries. He he Clayton for accident. Clayton jolts. his Clayton's 2008, were d i s p u t e d . to that that Montgomery the recovery injuries where trial 30, several of saw t h a t h i s t r u c k had in result trial two September on He l o t to at felt saw Henderson based happened. testified t r u c k and a had no failed testified the brakes truck to e x p e r i e n c e d any and roll. problems C l a y t o n a l s o sued IndusTree Timber, Inc., but the trial c o u r t e n t e r e d a summary j u d g m e n t i n f a v o r o f t h a t d e f e n d a n t before t r i a l . C l a y t o n has not a p p e a l e d f r o m t h a t j u d g m e n t . 1 3 1091427 with the brakes Henderson's on his truck supervisor, Craig i n s p e c t o r , t e s t i f i e d t h a t he the accident Nichols also accident, but was d i d not unable to do Clayton's to the or after Nichols, a the truck i n s p e c t e d Henderson's t r u c k a f t e r anything wrong w i t h that he tried the accident. certified find testified i . e . , cause Over charge and before truck had to roll with to the brakes. recreate the brakes set, in oral the so. objection, j u r y , gave the the trial following court, its instruction: " I t i s the d u t y of the owner or the o p e r a t o r of a m o t o r v e h i c l e t o see t h a t i t i s r e a s o n a b l y safe and i n a r e a s o n a b l y s a f e c o n d i t i o n b e f o r e operating i t on a p u b l i c h i g h w a y ; w h e r e , h o w e v e r , t h e o w n e r o r operator of the v e h i c l e without knowledge of a defective condition, known or reasonably f o r e s e e a b l e , e x p e r i e n c e s m e c h a n i c a l f a i l u r e and s u c h m e c h a n i c a l f a i l u r e i s the s o l e p r o x i m a t e cause of t h e i n j u r y o r damage, t h e owner o r o p e r a t o r cannot be h e l d l i a b l e t h e r e f o r . " Alabama Pattern (mechanical charge was Jury failure)(2d ed. 1993). sufficient subsequently returned T i m b e r , and Clayton the Instructions: the moved judgment. trial for He a to Civil Clayton's preserve any a verdict i n favor court new entered trial argued 4 the 26.14 o b j e c t i o n to error. The court LLB the v e r d i c t . alternatively, trial the jury o f H e n d e r s o n and a j u d g m e n t on and, that ("APJI") to vacate improperly 1091427 charged the verdict and was jury not t h a t the motion his motions, mechanical s u p p o r t e d by trial for a motion on and a as new Clayton that the a preponderance of the court erred in f a i l i n g judgment for failure, a matter trial. of The to grant law and, trial jury's evidence, Clayton's subsequently, court denied the appealed. Analysis On court appeal Clayton argues, improperly failure, that preponderance in failing matter This of to law Court has instructed the jury's as he d i d b e l o w , t h a t t h e the verdict of the e v i d e n c e , grant and, jury and Clayton's subsequently, was regarding not for h i s motion mechanical supported t h a t the t r i a l motion trial a by a court erred judgment f o r a new as a trial. stated: "'A trial court has broad discretion in formulating i t s j u r y i n s t r u c t i o n s , provided those instructions accurately reflect the law and the f a c t s o f t h e c a s e . ' P r e s s l e y v . S t a t e , 770 So. 2d 1 1 5 , 139 ( A l a . C r i m . App. 1999). Thus, 'generally speaking, the standard of review for jury i n s t r u c t i o n s i s a b u s e o f d i s c r e t i o n . ' P o l l o c k v . CCC I n v s . I , L L C , 933 So. 2d 5 7 2 , 574 ( F l a . D i s t . Ct. App. 2 0 0 6 ) . " Arthur has v. also Bolen, 41 So. 3d 745, stated: 5 749 ( A l a . 2010). This Court 1091427 "Under Alabama law, ' " [ a ] p a r t y i s e n t i t l e d t o proper jury instructions regarding the issues p r e s e n t e d , a n d an i n c o r r e c t o r m i s l e a d i n g c h a r g e may b e t h e b a s i s f o r t h e g r a n t i n g o f a new t r i a l . " ' K i n g v . W.A. B r o w n & S o n s , I n c . , 585 S o . 2 d 1 0 , 12 ( A l a . 1991) ( c i t a t i o n o m i t t e d ) . When a n o b j e c t i o n t o a j u r y charge has been p r o p e r l y p r e s e r v e d f o r r e v i e w on appeal, as t h i s one was, we '"look to the e n t i r e t y o f t h e [ j u r y ] c h a r g e t o s e e i f t h e r e was r e v e r s i b l e e r r o r , " ' and r e v e r s a l i s w a r r a n t e d only i f t h e e r r o r i s p r e j u d i c i a l . K i n g , 585 S o . 2 d a t 12." George (Ala. H. L a n i e r Mem'l H o s p . given So. by concedes that the m e c h a n i c a l - f a i l u r e the t r i a l argues, court however, that i s a correct the t r i a l i n s t r u c t i o n b e c a u s e , he s a y s , of mechanical cites evidence 2d 802, 806 decisions So. be 3d added.) in Phillips used ( A l a . 2010), i n g i v i n g the evidence Clayton 26.14, as also v. Seward, erred of the law. insufficient i n cases failure Clayton court instruction s u c h an i n s t r u c t i o n . on u s e " t o A P J I i s : "To statement t h e r e was to support of mechanical (Emphasis 914 failure the "notes instruction 2d 809 2001). Clayton He v. Andrews, which where defendant a defense relies state that 6 offers to the a c t i o n . " on [Ms. 1 0 8 1 2 2 6 , this Court's June 25, and F r i e d l a n d e r v. H a l l , ( A l a . 1987). the 2010] 514 So. 1091427 In Phillips, involved Travis in a the p l a i n t i f f , car accident Seward who, while employer, Heartland Phillips's vehicle after in a merging Seward the trial and jury that of argued substantial injured Express, the evidence that was a t l e a s t the t r i a l that must determine evidence that Phillips justify the giving of contributory negligence." fact, i n some the entered argued a that regarding Specifically, to present i n which o f h e r own she was negligence by c h a r g i n g objected t h i s Court there way the was challenged to the s t a t e d : "[W]e substantial negligent ___ So. 3d a t ___ . 7 sued ___ So. 3d a t ___ . instruction, was of slightly Phillips "failed had p r o p e r l y in James back forward Phillips erred was by h i s the stop. accident accordingly whether, owned negligence. the result Phillips contributory-negligence to a defendants on c o n t r i b u t o r y n e g l i g e n c e . " Concluding had r o l l e d by i n s t r u c t e d the jury the partly court truck On a p p e a l , contributory that a driven I n c . , and t h e j u r y court had e r r o n e o u s l y doctrine Phillips come f o r the defendants. Phillips, Inc., struck Phillips and then Nell a vehicle driving Express, and H e a r t l a n d verdict the lane with Mary so as t o instruction This Court on then 1091427 stated that the law regarding contributory contributory negligence which the d e f e n d a n t had the evidence, presented was the substantial therefore, instructing the jury e r r o r p r e j u d i c i a l and remanded the from rear on by the Amelia that by t h a t she d i d not see Friedlander objection, time, sued the i t Hall, trial sudden-emergency d o c t r i n e . verdict This for Hall, and vehicle was an had Court at found in the struck Hall. Hall Friedlander's vehicle, the v e h i c l e between H a l l ' s turned to the late for her over right to and stop. Friedlander's jury regarding jury subsequently the rendered a appealed. Friedlander d i d not "argue t h a t i n c o r r e c t statement of law, 8 erred v e h i c l e was Mary A l y c e i n s t r u c t e d the The acted defendants trial, too Friedlander Court noted that i n s t r u c t i o n g i v e n was until and, court This not trial. driven Friedlander's court to examining had the judgment f o r the a vehicle stopped i n t r a f f i c , by trial Friedlander's w h i c h was that, the f o r a new at t r i a l and After Phillips doctrine. testified vehicle that that reversed cause Friedlander, the noted a f f i r m a t i v e d e f e n s e as burden of p r o o f . evidence and, In and t h i s C o u r t c o n c l u d e d t h a t the d e f e n d a n t s had negligently and an negligence but the [did] 1091427 contend charge the t h a t i t was in this facts of improper case." the case f o r the t r i a l 514 So. 2d a t 9 1 5 . and court to give This Court this examined concluded: " F r o m o u r r e v i e w o f t h e r e c o r d , we a r e u n a b l e t o d e t e c t any e v i d e n c e t o s u p p o r t t h e c o n t e n t i o n t h a t t h i s c a s e i n v o l v e d a s u d d e n e m e r g e n c y . T h e r e was no u n u s u a l or sudden o c c u r r e n c e t h a t a d r i v e r on a crowded m u n i c i p a l s t r e e t s h o u l d not a n t i c i p a t e or expect i n the o r d i n a r y course of congested urban t r a v e l . C o n s e q u e n t l y , we a r e o f t h e o p i n i o n t h a t t h e jury was erroneously instructed on the sudden emergency d o c t r i n e . "We a r e m i n d f u l t h a t j u r y v e r d i c t s a r e p r e s u m e d to be correct, and that the presumption of c o r r e c t n e s s i s s t r e n g t h e n e d where the t r i a l court d e n i e s a m o t i o n f o r new t r i a l . G u t h r i e v . M c C a u l e y , 376 So. 2 d 1373 ( A l a . 1979). However, h a v i n g found that the t r i a l c o u r t , under the circumstances of t h i s c a s e , c o m m i t t e d r e v e r s i b l e e r r o r by i n s t r u c t i n g t h e j u r y on s u d d e n e m e r g e n c y , we n e e d n o t address the i s s u e of the trial court's denial of Mrs. F r i e d l a n d e r ' s motion f o r new trial on t h e ground t h a t t h e v e r d i c t was n o t s u p p o r t e d b y t h e e v i d e n c e . "Therefore, the be r e v e r s e d a n d to judgment of the t r i a l c o u r t i s the cause remanded f o r a new trial." 514 (Ala. So. 2d at 916. 1989)(reaching circumstances emergency See the involving also Jones v. Lyons, 540 So. same c o n c l u s i o n i n n e a r l y a jury doctrine). 9 instruction on the 2d 729 identical sudden- 1091427 Based on that Court's and Friedlander this on the comments t o A P J I 26.14, C l a y t o n and LLB Timber Henderson indicating that therefore, the the jury Timber a decisions failed mechanical trial regarding court to failure had no mechanical in present had basis on which failure. that Henderson testified that his testimony is explanation mechanical for failure Henderson and sufficient of set that, instruct and the be of his Based contend truck on that mechanical they failure is no that than this LLB brakes believed--there Timber evidence to moving the argues and to occurred. LLB he and evidence Henderson argue other any occurred that--if and Phillips a reasoning, did to present support the instruction. H e n d e r s o n and brakes on Henderson's p r e s e n t e d any that he did accident on his his supervisor, not have t h a t he truck. He testified were problems before and know w h a t h a d truck any was also happened t h a t he could the Nichols, t e s t i f i e d that the new that not accident. problems certain not cause find 10 with t h a t he testified to and the brakes stated after set the p a r k i n g truck anything had Henderson repeatedly the they to that roll. wrong w i t h he the brake did not Nichols the brake 1091427 system or with testified that Accordingly, there any o t h e r he other part of the truck. could than was no e v i d e n c e not the fact Nichols recreate that the accident. the accident to indicate that further occurred, a mechanical failure occurred. Henderson So. 2d 1248 and LLB Timber (Ala. 1987). rely In Kinard, s t r u c k an o b j e c t on t h e i n t e r s t a t e , vehicle to northbound struck a blow lane trial, failure. Kinards On argued The driven by jury causing then v. C a r t e r , Carter's vehicle a t i r e on C a r t e r ' s from the of the i n t e r s t a t e and her The K i n a r d s crossed i n which sued C a r t e r and, i n s t r u c t e d the jury regarding returned 518 Kinard lane Valerie was a p a s s e n g e r . the court Jack His vehicle t o the southbound vehicle husband, O l i s , at out. on K i n a r d a verdict mechanical f o r Carter, and t h e appealed. appeal, that mechanical among the t r i a l failure. several court This other erred Court arguments, i n instructing the Kinards t h e j u r y on stated: "The evidence i s without dispute that d e f e n d a n t ' s c a r was e q u i p p e d w i t h f o u r new t i r e s , that at least one o f t h e s e tires 'blew o u t ' o r failed when the object was struck, and that defendant's car left the highway immediately t h e r e a f t e r and s t r u c k p l a i n t i f f s ' v e h i c l e . Thus, t h e 11 1091427 d e f e n d a n t e x p e r i e n c e d a m e c h a n i c a l f a i l u r e . I t was for the j u r y to decide whether that mechanical f a i l u r e , o r some n e g l i g e n c e o f t h e d e f e n d a n t , was the proximate cause of p l a i n t i f f s ' i n j u r i e s . Howell v . B i r m i n g h a m N e h i B o t t l i n g C o . , 267 A l a . 2 9 0 , 101 So. 2 d 297 (1958)." 518 So. that 2d a t 1251. Carter's new In K i n a r d , tire had therefore, actually failed. d i s t i n g u i s h a b l e from t h i s case because presented evidence fact occurred. fact that indicate In t h i s the that assume fact: that facts or the landlord in case for failing the p l a i n t i f f to was repair not the abstract instructing before the them, an jury but as i t cite the jury 323, her the a no two evidence the to for the instruction did not to a conclusion 134 So. 2d 2 0 1 , plaintiff to stay sued that a i n her principle correct of statement 203 her apartment law in deciding of charge have been r e f u s e d because 12 in cases radiator, to i t s e f f e c t is was had occurred. required "might of above, there i n which a f t e r her lease e x p i r e d statement other than 273 A l a . 3 2 1 , a in Kinard stated next improperly lead thus failure failure Timber Kinard i s the defendant mechanical-failure S m i t h v. P i e r c e , (1961)(stating, that LLB showed a mechanical occurred, a mechanical and that c a s e , as accident Henderson proposition showing the evidence without the of i t is a issues legal 1091427 principle, do s o " ) , and 290, a unnecessary to s t a t e , So. 2d 2 9 7 , mechanical-failure not a gasket find where right wheel front facts stated hypothesizes those facts on the of evidence which gives would character charge And the to The the reasonable at than the a had 293, LLB 101 but the at 300. failure of the a c c i d e n t . 13 the charge that from such a is not of such it."). We giving of do evidence here law as was in ... evidence not Smith. facts of a on their in fact ruptured. As evidence c o u l d be "We the instruction from 2d Ala. of i t for T i m b e r p r e s e n t e d no mechanical fact So. but "hypothesize[d] satisfaction to showed ruptured: phase principle instruction 267 satisfaction i . e . , e v i d e n c e t h a t a g a s k e t had H e n d e r s o n and of abstract Co., It i s said one reversal mechanical-failure i n Howell, fact ... to error evidence assumed i t s refusal, a the reasonable existence. require r e g a r d i n g an Ala. are the prominence justify existence," 267 their undue as disagree. reversible (1958)(stating regarding instruction i n the that 299-300 the charge not H o w e l l v. B i r m i n g h a m N e h i B o t t l i n g 2 9 3 - 9 4 , 101 that but stated above, from which "hypothesized" the other 1091427 When considering claims Manufacturer's Liability has a plaintiff held failure fact that or defect; that Motors Doctrine must occurred. existence of a defective "allowing from caused the fact that under that i t failed rely solely Court of the on t h e v. General ( A l a . 1997) ( r e q u i r i n g t h e t h e AEMLD t o " p r o v e t h e and prove his injuries," a jury to infer the existence cannot condition Extended this See, e.g., T a y l o r i n an a c t i o n b r o u g h t proximately prove 707 S o . 2 d 1 9 8 , 202 plaintiff Alabama's ("the AEMLD"), the p l a i n t i f f an a c c i d e n t Corp., under that and n o t i n g a product the defect the error i n i s defective i n some m a n n e r " ) ; solely Townsend v. General Motors Corp., 642 S o . 2 d 4 1 1 , 415 ( A l a . 1 9 9 4 ) ( s t a t i n g in "[T]he a n AEMLD action: presuppose the existence injury i s not i n i t s e l f u n d e r t h e AEMLD; a d e f e c t failure of a defect. sufficient of a Proof that she automobile accident she d i d not present received while not liability i n t h e p r o d u c t must be a f f i r m a t i v e l y 1991) ("Because J o r d a n p r e s e n t e d evidence does o f an a c c i d e n t a n d to establish shown."); Jordan v. G e n e r a l Motors Corp., (Ala. product injuries 5 8 1 S o . 2 d 8 3 5 , 837 no e v i d e n c e o t h e r as a result of w e a r i n g a GM s e a t b e l t , we h o l d s u b s t a n t i a l evidence 14 to support than a an that claim 1091427 under t h e AEMLD."). defense We of mechanical believe failure burden. A c c o r d i n g l y , the standing alone, failure to support H e n d e r s o n and a mechanical do i s not LLB the jury fact that evidence of verdict It a was in fact occurred. c o u r t exceeded sufficient mechanical i t s discretion they in did on that not instructing failure. Timber argue evidence t h a t any e r r o r i n not p r e j u d i c i a l to the to support a they r e l y on e v i d e n c e f r o m w h i c h the j u r y c o u l d have c o n c l u d e d that Clayton However, was on o t h e r g r o u n d s . jury because Specifically, argued f o r the defense occurred, evidence Because a lesser incumbent Timber to p r e s e n t s u b s t a n t i a l H e n d e r s o n and LLB presented h e l d to a accident t h e m e c h a n i c a l - f a i l u r e i n s t r u c t i o n was they be asserting an instruction. regarding mechanical Finally, a defendant s h o u l d not sufficient the failure so, the t r i a l that malingering. the defendants have o r shown t h a t t h e e v i d e n c e o f m a l i n g e r i n g e n t i t l e d to a judgment i n t h e i r instruction. favor, i n the absence of the not them erroneous T h e r e f o r e , the evidence of m a l i n g e r i n g p r e s e n t e d by t h e d e f e n d a n t s d o e s n o t a l l o w us t o t r e a t erroneous instruction speculate that the as jury harmless reached 15 the g i v i n g error. i t s verdict We of the decline to solely on the 1091427 basis of evidence For a l l that was based Clayton appears, on instruction indicating the that cause the verdict prejudicial prevented i f i t found proximate that that Clayton i n favor the mechanical of the accident of from malingering. of the defendants effect the jury was the finding erroneous i n favor of f a i l u r e was t h e s o l e and C l a y t o n ' s injuries. Conclusion B a s e d on t h e f o r e g o i n g , erred i n instructing we c o n c l u d e the jury regarding because the defendants d i dnot present that a mechanical reverse Our the judgment holding Clayton's failure in remaining R E V E R S E D AND had regard arguments any e v i d e n c e the cause pretermits on the t r i a l mechanical occurred. and remand this that indicating f o r a new we trial. consideration of appeal. REMANDED. concur. Murdock, failure Accordingly, Cobb, C . J . , and W o o d a l l , S t u a r t , B o l i n , P a r k e r , JJ., court J., dissents. 16 a n d Shaw, 1091427 MURDOCK, J u s t i c e (dissenting). Darryl cites Pattern state Clayton Jury that a defense to that the at i s s u e . r e s u l t o f one o f two the brakes failure brakes, and properly. 2 The that jury failure The by George failure to that had evidence yielded that which be only used failure evidence cause have been properly he set set the t o be g i v e n of those brakes Henderson's jury. incident Henderson of the brakes is "To have could no not be no evidence weighs replicated, other problem b r a k e s b e f o r e or a f t e r t h e i n c i d e n t , and t h a t h i s inspection 1993), a mechanical f a i l u r e Henderson f o r the the did incident could testified a question that Alabama must have been t h e c r e d i b i l i t y and w e i g h t evidence William The occurrences: Henderson t e s t i m o n y was The a (2d e d . to instruction i s : action." the or use" o f f e r s evidence of m e c h a n i c a l a mechanical the i n c i d e n t on § 26.14 a mechanical-failure indicating of "notes Instructions: Civil i n c a s e s where d e f e n d a n t as the the supervisor's of a against with mechanical Henderson's c r e d i b i l i t y and/or a s s i g n i n g h i s t e s t i m o n y d i s p o s i t i v e weight. H e n d e r s o n f u r t h e r t e s t i f i e d t h a t , a f t e r t h e i n c i d e n t , he e n t e r e d the cab of h i s t r u c k , f o u n d t h a t the b r a k e s were s t i l l s e t , and r e l e a s e d them. 2 17 1091427 I cannot say as a matter and weight t h a t the of decide testimony presented; that I June he 25, issue task (Ala. and cases the So. 2d 914 1989), conclusion of for the was credibility entitled brakes logically brakes of one jury under to I f the j u r y c o u l d jury instruction the So. the set for only assignment Henderson properly 2010] 514 729 at the find Hall, 2d of a i f i t b e l i e v e d him. occasion meaning The remains truck, then i t reasonably the allows however. therefore circumstances jury law, evidence given. v. have failed his exiting the within on the 3 Seward, [Ms. 1081226, (Ala. 2010), (Ala. 1987), and J o n e s v. Lyons, relied by the opinion upon a accept could conclude that must have Phillips 3d before the main Friedlander 540 to v. So. be inapposite. Based on the foregoing, I respectfully dissent. Obviously, i t c o u l d have been i m p o r t a n t f o r the trial court to instruct the jury that i t was the jury's responsibility to decide i f there had been a mechanical f a i l u r e b e f o r e a p p l y i n g the p a r t i c u l a r i n s t r u c t i o n at i s s u e . We are not presented with any argument that such an i n s t r u c t i o n was m i s s i n g f r o m t h e c h a r g e s g i v e n t h e j u r y o r w h e t h e r a n y s u c h o m i s s i o n w o u l d make t h e m e c h a n i c a l - f a i l u r e charge given misleading. 3 18

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