Rose v. Herring Tractor & Truck Co.

267 S.E.2d 717 (1980)

Archie ROSE
v.
HERRING TRACTOR & TRUCK CO. and International Harvester Company.

No. 798SC1034.

Court of Appeals of North Carolina.

July 15, 1980.

Barnes, Braswell & Haithcock by Michael A. Ellis and W. Timothy Haithcock, Goldsboro, for plaintiff-appellant.

Taylor, Warren, Kerr & Walker by Robert D. Walker, Jr. and John H. Kerr, III, Goldsboro, for defendant-appellee, Herring Tractor and Truck Company.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by C. Ernest Simons, Jr., Raleigh, for defendant-appellee, International Harvester Company.

CLARK, Judge.

The plaintiff does not bring forth any argument or assignment of error or make any argument in his brief on the issues of breach of warranty or on the question of liability of International Harvester. The plaintiff therefore waives any assignment of error on these questions. N.C.App.R. 28; Crockett v. First Federal Savings and Loan Association, 289 N.C. 620, 224 S.E.2d 580 (1976); State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976).

The only question properly raised for review by this Court is whether the trial court erred in directing a verdict for the defendants. The defendants contend that the plaintiff was guilty of negligence as a matter of law because plaintiff's employee continued to drive the tractor on a public highway with knowledge that the brakes were not in proper working order and were unsafe. On the other hand, plaintiff contends that he was not contributorily negligent because he was acting in reasonable reliance upon the statements or representations of the employees of Herring Tractor that the tractor brakes were in proper working order. We do not agree with plaintiff's contentions.

"The right to rely upon the assumption that another will exercise due care is not absolute . . . and must yield to the realities of the situation to the extent that if the plaintiff observes a violation of duty which imperils him, he must be vigilant in attempting to avoid injury to himself." Harris v. Bingham, 246 N.C. 77, 79, 97 S.E.2d 453, 455 (1957). "[W]here a person sui juris knows of a dangerous condition and voluntarily goes into the place of danger, he is guilty of contributory negligence, which will bar his recovery." Dunnevant v. R. R., 167 N.C. 232, 234, 83 S.E. 347, 348 (1914); Cook v. Winston-Salem, 241 N.C. 422, 85 S.E.2d 696 (1955) (quoting the above language, held nonsuit properly allowed at close of plaintiff's evidence). There is no dispute about the relevant facts as quoted in the statement of facts above: plaintiff's partner and employee both knew of the defective condition of the brakes and nonetheless caused the tractor to be operated on a public highway. "Here, according to plaintiff's [evidence], the alleged known defective condition was obvious, not latent; and such defective condition was of such nature that the hazards reasonably foreseeable from the continued use and operation of the [tractor] were patent." Nationwide Mutual Insurance Co. v. Don Allen Chevrolet Co., 253 N.C. 243, 251, 116 S.E.2d 780, 786 (1960). The willingness of plaintiff's employee-driver and partner-owner to operate the tractor on a public highway with defective or malfunctioning brakes and knowledge thereof is negligence as a matter of law. G.S. 20-124; Wilcox v. Glover Motors, Inc., 269 N.C. 473, 153 S.E.2d 76 (1967) (duty on both owner and driver who have knowledge); Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246 (1945). The entry of directed verdict for the defendant was proper.

Affirmed.

VAUGHN and HARRY C. MARTIN, JJ., concur.