Stone v. Mitchell , 5 N.C. App. 373 ( 1969 )

MORRIS, J.

Defendants assign as error the following portion of the court’s charge:

“Members of the jury, the Court feels that under all the evidence in this case, only one inference may be drawn from this evidence and from the facts admitted, including of course, the testimony of the defendant Mann, the agent of the defendants Mitchell and Walker; it is the law of this State that an operator of a motor vehicle must stop where a stop sign is erected by competent authority as provided by the statute, and yield the right of way to vehicles on a dominant or through highway, and failure to do so is evidence of negligence. The evidence in this case tends to show without question that the GMC delivery truck operated by the defendant Mann did not stop in obedience to the stop sign on Umstead Drive, but that he continued on through into the intersection and struck the vehicle operated by the plaintiff. However, the evidence further tends to show that he had a brake failure of his foot brakes and further tends to show from his testimony that he didn’t have any hand or emergency brake. Now, we have a statute, G.S. 20-124, which requires that a motor vehicle have two separate means of applying the brakes and that these must be so constructed that failure of any one of the operating mechanism shall not leave the motor vehicle without brakes; so members of the jury, the Court feels, as I’ve said, that there is only one inference to be drawn from the evidence in this particular case; that in view of all of the testimony and particularly the testimony of the defendant Mann, agent of the defendants Mitchell and Walker, that the defendant Mann was negligent on the occasion in question and his negligence of course is imputed to the other defendants, the operators of the Triangle Dairies. I do instruct you that if you believe the evidence in this case and find by the greater weight thereof the facts to be as the evidence tends to show, bearing in mind that the burden is upon the plaintiff, then I instruct you that it would be your duty to find that the defendants in this case were negligent; and if you further find by the greater weight of the evidence that such negligence of the defendants was a proximate cause of the collision between the vehicles and the injuries to the plaintiff, then it would be-your duty to answer this first issue yes; if you fail to so find,. it -would be your duty to answer this first issue no.”

Defendants contend that the evidence in this case is not such that the only inference to be drawn therefrom is that defendants were guilty of negligence, but on the contrary that diverse inferences may be drawn therefrom — some favorable to plaintiff and others favorable to defendants, making it a jury question.

Although the failure to maintain proper brakes would warrant a finding of negligence, we are of the opinion that whether defendants’ evidence was sufficient to overcome the showing made by plaintiff is a question for the jury.

In Stephens v. Oil Co., 259 N.C. 456, 131 S.E. 2d 39, a case strikingly similar as to facts, defendant driver was going downhill driving an oil tanker. It appeared that the collision occurred on Saturday and the brakes had been overhauled and relined the preceding Thursday. They had worked properly early Saturday morning. Defendant driver, approaching a line of cars, applied his brakes “and didn’t have any”. He pulled to his left thinking the extra width of the highway in the western lane would enable him to avoid a collision, but he collided with the back fender of plaintiff’s car. He had attempted to check his speed by throwing the transmission in low gear, but was unable to do so. The Supreme Court said the court properly overruled defendant’s motion for nonsuit for that plaintiff’s evidence was sufficient to permit a jury to find defendants violated three statutes, including G.S. 20-124, and if the negligence resulting from failure to comply with any of these statutes proximately causes injury, liability results, the question of proximate cause being for the jury. Defendants there, as here, assigned as error portions of the charge relating to the violation of the safety statutes and to the failure of the court to instruct the jury with respect to their defense — unavoidable accident. Rodman, J., speaking for the Court, said:

“Plaintiff has shown the violation of a statute, G.S. 20-124, mandatory in its language. Notwithstanding this mandatory language, the statute must be given a reasonable interpretation to promote its intended purpose. The Legislature did not intend to make operators of motor vehicles insurers of the adequacy of their brakes. The operator must act with care and diligence to see that his brakes meet the standard prescribed by statute; but if because of some latent defect, unknown to the operator and not reasonably discoverable upon proper inspection, he is not able to control the movement of his car, he is not negligent, and for that reason not liable for injuries directly resulting from such loss of control. The injuries result from an unavoidable accident. Smith v. Pate, 246 N.C. 63, 97 S.E. 2d 457; Pike v. Seymour, 222 N.C. 42, 21 S.E. 2d 884.

The true rule is, we think, clearly and accurately stated in Wilson v. Shumate, 296 S.W. 2d 72. There plaintiff was driving defendant’s automobile at his request. She was injured because of the failure of the brakes on the car. The Court said: ‘Plaintiff’s testimony, heretofore noted, that the brake pedal went clear to the floor as she “again and again” used it in an attempt to stop the automobile, that it had failed to slow or stop but. ran into the embankment, was sufficient evidence from which a jury reasonably could find that defendant’s automobile was not equipped with two sets of brakes in good working order during the time plaintiff was driving and that the defective foot brake contributed to cause the collision. Defendant’s failure to observe the duty or standard of care prescribed by the statute constituted negligence. In recognition, however, of the principle that the statutes must be reasonably construed and applied, defendant could offer proof of legal excuse or avoidance of his failure to have observed the duty created by the statute, i.e., proof that an occurrence wholly without his fault made compliance with the statute impossible at the moment complained of and which proper care on his part would not have avoided. Upon adducing the substantial evidence tending to so prove, it was then a jury question as to whether the defendant was negligent for failure to have provided a foot brake in good working order.’ Lochmoeller v. Kiel, 137 S.W. 2d 625; Merry v. Knudsen Creamery Co., 211 P. 2d 905; Purser v. Thompson, 219 S.W. 2d 211; Eddy v. McAninch, 347 P 2d 499. Similar conclusions have been announced by the courts with respect to other safety statutes. Leek v. Dillard, 304 S.W. 2d 60; Scott v. Mackey, 324 P. 2d 703; Clark v. Hawkins, 321 P 2d 648; Bedget v. Lewin, 118 S.E. 2d 650; Frager v. Tomlinson, 57 N.W. 2d 618.”

Here defendants have shown periodic brake adjustment and repair, the last such adjustment to all brakes occurring -on 3 November. The evidence was that the foot brakes had worked properly since that time and that for the more than 100 deliveries made by the driver that morning no difficulty had been experienced. There-is no evidence that the emergency brake had been used or attempted to be used since 3 November. The evidence was that the driver was-“pretty sure” he pulled the emergency brake when the foot brake-failed and after he had attempted to gear the truck down. The-evidence is that neither the patrolman nor anyone else checked the emergency brake after the accident.

We think the defendants’ evidence, if accepted by the jury, was sufficient to negative the allegation that the truck was being operated without adequate brakes.

Defendants’ contention as to error committed in the admission of evidence is not discussed since, for error in the charge, there must be a new trial and the particular error, if any, is not likely to occur upon another trial.

New trial.

Campbell and BbocK, JJ., concur.