Brittain v. Piedmont Aviation, Inc. , 254 N.C. 697 ( 1961 )

120 S.E.2d 72 (1961) 254 N.C. 697

Ralph C. BRITTAIN
v.
PIEDMONT AVIATION, INC.

No. 247.

Supreme Court of North Carolina.

May 24, 1961.

Grier, Parker, Poe & Thompson, Charlotte, for plaintiff appellee.

John H. Small, Charlotte, for defendant appellant.

RODMAN, Justice.

Defendant's principal assignment of error is directed to the refusal of the court to allow its motion for nonsuit. It argues here that there is no evidence to support the allegations of negligence, strenuously contending that all the evidence shows that the violent movement of the plane, which admittedly happened, occurred at a time and place where there was no reason to suspect any abnormal atmospheric conditions, asserting that the violent movement was due to what it refers to as clear-air turbulence.

The law applicable to this case was stated by Moore, J., in Jackson v. Stancil, 253 N.C. 291, 116 S.E.2d 817, 821. He said: "Liability of a carrier of passengers by aircraft must be based on negligence. Such carrier is not an insurer of the safety of its passengers. * * * In North Carolina a distinction is made between the duties owed to passengers for hire by common carriers and private or contract carriers. It has been uniformly held by us that a common carrier owes its passengers the highest degree of care for their safety so far as is consistent with the practical operation and conduct of its business." He follows this statement by distinguishing between ordinary care and the highest degree of care. Briefly the distinction is the care which an ordinarily prudent carrier would exercise as compared with the care which an unusually prudent and competent carrier would exercise.

With apparent approval of the law enunciated in the Stancil case, supra, defendant requested the court in charging the jury to inform it that defendant contended: "The area of the mountain ridge including Grandfather Mountains usually or generally had some rough air or turbulence for airplanes flying across it, and for this reason Piedmont Airlines on the flight from Tri-Cities Airport to Hickory Airport as standard operating procedure required that the sign requiring that seat belts be fastened be on for the passage over this area. The defendant says that this was a general precaution followed whether actual turbulence was expected, or not, or whether actual turbulence was encountered, or not.

"The defendant says that no rough air or turbulence was encountered in the area where it might have been expected and that the airplane had proceeded beyond and east of the mountain area when the violent downcraft occurred."

The case was tried on defendant's theory of the law. The jury was told that plaintiff, to recover, had to establish (1) the injury occurred in an area where defendant knew downdrafts were apt to occur and for that reason owed a duty to warn its passengers, and (2) it failed to give such warning.

The question we are now required to answer is: Was there any evidence on which the jury could find these basic facts? We are not called upon nor are we permitted to weigh the evidence. If a trial court is of the opinion that the jury has not properly evaluated the evidence, and its findings will result in a miscarriage of justice, it may prevent such injustice by setting the verdict aside.

Taking the requisite facts in inverse order, the record discloses plaintiff testified: "Before I got up out of my seat, the seat belt light was not on. I looked at it. I don't know exactly where the flight steward was, but I had asked him for a cup of water a few minutes prior to getting up * * * and as I got up and got to the door, he handed me a cup of water * * *. I have false dentures and wanted to clean my teeth. That was the purpose for which I wanted the water. I don't know where the flight steward went after he handed me the water as I went directly inside." According to plaintiff the plane dropped just after he got in the Blue Room. On cross-examination he said: "When I stood up the last time to go to the Blue Room, the seat belt light was not on * * * The cup which the flight attendant handed me was a small paper cup with water in it, a flat-bottomed cup."

The flight attendant testified that the light warning passengers to fasten their seat belts came on at least five minutes prior to the time plaintiff was injured and remained on until after the injury. He said that the cup of water was given to plaintiff when he was in his seat and not as he was entering the Blue Room. There is evidence from other passengers tending to corroborate the flight attendant's statement that the warning light was on. But to determine whether it was or was not would be to weigh the evidence. We must accept plaintiff's version.

Did the injury occur in an area where air turbulence could be expected? Plaintiff testified: "* * * it was around Grandfather Mountain. I don't know whether it occurred before we reached Grandfather Mountain or after we reached Grandfather Mountain * * *" Defendant's evidence on this question was more specific. It was, we think, in part at least, susceptible to inferences favorable to plaintiff's contention. The co-pilot testified: "It (warning light) was turned off at approximately an altitude of 4,000 to 5,000 feet. It was turned on next in the vicinity of Heaton * * * The seat belt light was turned on over the village of Heaton, which is about ten miles previous to entering the mountain area." The pilot said the light "was next turned on approximately three or four minutes prior to approaching Grandfather Mountain, I would say in the vicinity of Heaton." Defendant in its brief informs us: "Because Heaton is in the right location and is always identifiable in flight by the radio range, it is the position on eastbound flights where the seat belt sign is turned on." The evidence fails to disclose such a definite point east of the mountains where the area of turbulence terminates. It may be inferred from the testimony of the plane officials that Lenoir is such a point.

Defendant also informs us by brief that the distance from Tri-Cities to Heaton is 33 miles, to Lenoir, 62 miles, and to Hickory, 76 miles.

The co-pilot testified: "The air speed would have been approximately 227 knots, or nautical miles, slightly longer than the regular mile." The course from Tri-Cities to Hickory is 141 degrees. "The status of the winds in that area at that altitude was 280 degrees at about 40 miles per hour." The ground speed would, therefore, be something in excess of four miles per minute. The co-pilot fixed the place of injury as "in the vicinity of Lenoir * * *. This would be, roughly speaking, 18 or 20 miles from the ridges we had passed." Such position would be fourteen miles west of Hickory, slightly more than three minutes flying time, yet the flight attendant says that it was eight to ten minutes after the injury before arrival at Hickory. He also fixes the time elapsing between the giving of the warning signal until the injury as "at least five minutes." Accepting, as the jury could, five minutes as the period of time elapsing between the turning on of the lights and the injury, the plane would travel about twenty miles from the turning on of the lights and the moment of fall; but the jury could draw the inference that twelve to sixteen miles of this distance was west of Grandfather. The downsweep of the air takes place after passing the mountain range. The jury could infer from the testimony that the plane had only passed Grandfather some four miles when the downd aft which caused plaintiff's injury was encountered. If, in such close proximity, would not an unusually prudent man have expected the exact air turbulence or downdraft which the plane encountered? The original answer responds in the affirmative and asserts the light was on because in an area where turbulence could be expected.

Because there was evidence on which the jury could find both facts necessary to establish defendant's negligence, the court properly overruled the motion to nonsuit.

Plaintiff offered medical testimony in support of his assertion that he sustained serious and permanent injuries. Defendant called as one of its witnesses Dr. Coffey, who had treated plaintiff. Dr. Coffey had not been called or examined by plaintiff as a witness. On plaintiff's objection, the court excluded his testimony. Dr. Coffey, by stipulation of plaintiff, is an expert neurological physician. He was requested to examine plaintiff by Dr. Wrenn, a medical expert specializing in the field of orthopedic surgery. Dr. Wrenn treated plaintiff for the injuries sustained. He testified as an expert on plaintiff's behalf. Dr. Coffey testified without objection that he examined plaintiff on 25 February 1959. He was then asked: "Q. Doctor, what was the result of that examination?" Defendant objected. The objection was sustained. Counsel for plaintiff stated that his objection was "on the ground that the examination of the plaintiff by Dr. Coffey constituted a communication between physician and patient, and information obtained therefrom by Dr. Coffey was privileged." The record discloses: "The Court stated that in his opinion the evidence was privileged and that the Court would not permit Dr. Coffey to testify as to his examination of the plaintiff, or as to information obtained therefrom." Our statute (G.S. § 8-53) declares communications between surgeons and patients privileged and in general protects the surgeon from being compelled to disclose information obtained from his patient in order to furnish proper treatment, but the statute contains a provision "that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice." Counsel for defendant insists that the evidence excluded was competent, relying on Capps v. Lynch, 253 N.C. 18, 116 S.E.2d 137, 141. The distinction between that and the present case is, we think, readily apparent. First, there is nothing to indicate that Dr. Coffey would have given any testimony beneficial to defendant, but passing that point, we think it clear that defendant has not brought himself within the statutory proviso. It is said in Capps v. Lynch, supra: "In the instant case the trial judge was vested with discretionary authority in accordance with the rule stated above, to compel the surgeon to give testimony of his examination, findings, surgery, treatment and prognosis. This, counsel aptly brought to the attention of the court. The court denied categorically that he had such discretion and ruled as a matter of law that the proffered evidence was absolutely privileged."

If it appeared that the court excluded the testimony of Dr. Coffey because he was compelled by statute to do so, we would direct a new trial; but the record, we think, clearly negatives any idea that the ruling was based on want of authority. The use of the word "permit" implies a discretion and a refusal because the court did not deem the evidence necessary to a proper administration of justice.

When no reason is assigned by the court for a ruling which may be made as a matter of discretion for the promotion of justice or because of a mistaken view of the law, the presumption on appeal is that the court made the ruling in the exercise of its discretion. Phelps v. McCotter, 252 N.C. 66, 112 S.E.2d 736; Ogburn v. Sterchi Bros., 218 N.C. 507, 11 S.E.2d 460; Warren v. Virginia-Carolina Joint Stock Land Bank, 214 N.C. 206, 198 S.E. 624; Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789; Jones v. Dixie Fire Insurance Co., 210 N.C. 559, 187 S.E. 769. If a party adversely affected by the ruling desires to review it on appeal, he may request the court to let the record show whether the ruling is made as a matter of law or in the exercise of the court's discretion.

We have carefully reviewed the other assignments of error but find nothing that we deem prejudicial or requiring discussion. Hence we reach the conclusion there is

No error.