Gibbs v. Gaimel , 257 N.C. 650 ( 1962 )

127 S.E.2d 271 (1962) 257 N.C. 650

Gwendellyn Brinn GIBBS
v.
Sheldon Alvin GAIMEL.

No. 22.

Supreme Court of North Carolina.

September 19, 1962.

Robt. B. Lowry, John H. Hall, Elizabeth City, for plaintiff, appellee.

LeRoy, Wells & Shaw, Elizabeth City, by Dewey W. Wells, Elizabeth City, for defendant, appellant.

HIGGINS, Justice.

The evidence permits these inferences: The defendant's vehicle was defective. He knew of the defect, but permitted the plaintiff to use it without disclosing the defect, of which she had no knowledge. The defective condition of the accelerator occasionally permitted the gasoline to continue to flow into the engine after the release of pressure on the accelerator pedal. The defendant had found out the danger of a racing engine could be overcome by "patting" the pedal. But he neither informed the plaintiff of the defect nor explained the manner by which the danger could be avoided. Thus, when the accelerator jammed, the plaintiff was unprepared for what confronted her. The result was a damaged house, a demolished automobile, and a permanently injured driver.

The evidence was sufficient to support a finding the owner had breached his duty to give the plaintiff notice of the defective condition of the automobile he was permitting her to use. "He who puts a thing in charge of another which he knows, or in the exercise of prudence he should have known, to be dangerous, or to possess characteristics which, in the ordinary course of events, are likely to produce injury, owes a duty to such person to give reasonable warning or notice of such danger." Austin v. Austin, 252 N.C. 283, 113 S.E.2d 553; Honeycutt v. Bryan, 240 N.C. 238, 81 S.E.2d 653; Sears v. Interurban Transp. Co., 14 La.App. 343, 125 So. 748, 752; Cronin v. Swett, 157 Neb. 662, 61 N.W.2d 219.

In order to make out a case, "Direct evidence of negligence is not required, but the same may be inferred from acts and * * * circumstances * * *." Frazier v. Suburban Rulane Gas Co., 247 N.C. 256, 100 S.E.2d 501; Shepard v. Rheem Mfg. Co., 251 N.C. 751, 112 S.E.2d 380; Young v. Koger, 94 Ga.App. 524, 95 S.E.2d 385.

The evidence was insufficient to show the plaintiff's contributory negligence as a matter of law. Bell v. Maxwell, 246 N.C. 257, 98 S.E.2d 33. The jammed accelerator confronted her with a sudden emergency which she did not create. Hence she cannot be held for failure to pursue the wisest choice of conduct. Bundy v. Belue, 253 N.C. 31, 116 S.E.2d 200; Hennig v. Booth (Naugle v. Booth), 4 N. J.Misc. 150, 132 A. 294.

We have carefully examined and found without merit all assignments of error which comply with Rule 19(3). Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597; Nichols v. McFarland, 249 N.C. 125, 105 S.E.2d 294; Rules of Practice in the Supreme Court 19(3), 254 N.C. 797. The cause presented issues of fact for the jury. McFalls v. Smith, 249 N.C. 123, 105 S.E.2d 297. The record discloses

No error.