Humphries v. Queen City Coach Co.

Winboenjs, J.

Defendant presents to this Court five questions for decision.

First: The denial of its motions for judgment as of nonsuit is stressed for error. In this connection when pertinent principles of law are applied to the evidence shown in the ■ record, taken in the light most favorable to plaintiff, the rulings of the court below are appropriate.

Where the relation of carrier and passenger exists the carrier owes to the passengers the highest degree of care for their safety so far as is consistent witb the practical operation and conduct of its business. But the liability of the carrier for injuries to a passenger is based on negligence. The carrier is not an insurer of the safety of passengers. See White v. Chappell, 219 N. C., 652, 14 S. E. (2d), 843, and cases cited.

In actions against common carriers, the courts are generally agreed that when a passenger is injured by machinery and appliances wholly under the carrier’s control, this fact is sufficient prima facie to show negligence. Saunders v. R. R., 185 N. C., 289, 117 S. E., 4. See also 20 R. C. L., 188, Negligence, Sec. 157.

Ordinarily a prima facie showing of negligence carries the case to the jury in the absence of evidence establishing contributory negligence as a matter of law. Morris v. Johnson, 214 N. C., 402, 199 S. E., 390; Woods v. Freeman, 213 N. C., 314, 195 S. E., 812.

Applying these principles to the present case, the evidence of plaintiff tending to show that as she, a passenger on defendant’s bus, was walking from her seat in the bus for the purpose of alighting, her shoe heel caught in a raised piece of steel in the bus and she tripped and fell, is sufficient to make a prima facie showing of negligence.

And in considering motion for judgment as of nonsuit at the close of all the evidence, so much of defendant’s evidence as is favorable to the plaintiff, or tends to explain and make, clear that which has been offered by the plaintiff may be considered; but that which tends to establish another and different state of facts, or which tends to contradict or impeach the evidence offered by plaintiff is to be disregarded. See Atkins v. Transportation Co., 224 N. C., 688, 32 S. E. (2d), 209, and cases cited there.

The evidence offered by defendant in the case in hand tends to make clear and to corroborate the evidence offered by plaintiff that she fell, that the heel of her shoe was knocked off, that the shoe heel was found on the floor of the bus, that the bus driver helped her to get up from the floor and put her in seat back of the driver’s seat, and that her hand was bleeding, and he gave first aid to it. This evidence may be considered on the motion for judgment as of nonsuit. But evidence that tends to contradict or impeach the evidence offered by plaintiff will be disregarded on such motion. Hence the motion for judgment as in ease of nonsuit was properly overruled. Lindsey v. R. R., 173 N. C., 390, 92 S. E., 166.

The second question relates to several exceptions to the ruling of the court in admitting, over defendant’s objection, testimony reciting statements made by plaintiff to' others as to her physical condition and suffering after she fell on the bus. The evidence to which these exceptions relate is competent for purpose of corroboration, and the record fails to show that appellant asked, at the time, that its purpose be restricted. In such case the admission of the statements will not be ground for exception. Rule 21 of Rules of Practice in the Supreme Court, 221 N. C., 544.

Tbe third, fourth and fifth questions pertain to the charge of the court to the jury to the effect that things were said that ought not to have been said, and things that ought to have been said were left unsaid. But a careful reading of the charge fails to disclose prejudicial error in either of these aspects.

No error.

Seawell, J., dissents.