Roberts v. William N. & Kate B. Reynolds Memorial Park

182 S.E.2d 611 (1971) 12 N.C. App. 69

D. I. ROBERTS
v.
WILLIAM N. AND KATE B. REYNOLDS MEMORIAL PARK, also known as Tanglewood Park, and Grady Shumate.

No. 7121SC231.

Court of Appeals of North Carolina.

August 4, 1971.

Roberts, Frye & Booth by Leslie G. Frye, and Powell & Powell by Harrell Powell, Jr., Winston-Salem, for plaintiff-appellant.

Deal, Hutchins & Minor by John M. Minor and William Kearns Davis, Winston-Salem, for defendants-appellees.

BROCK, Judge.

We agree with the ruling of the trial judge that plaintiff has failed to offer evidence of defendants' negligence. Directed verdict for defendants is

Affirmed.

MORRIS, J., concurs.

HEDRICK, J., dissents.

HEDRICK, Judge (dissenting).

A bailor for hire may be liable for personal injuries proximately resulting from the defective condition of a vehicle rented by him, where he is aware of the defect, or by reasonable care could have discovered it. Hudson v. Drive It Yourself, Inc., 236 N.C. 503, 73 S.E.2d 4 (1952); 46 A.L.R.2d 404, 443.

In the instant case, it would have been negligence for the defendants to have rented a golf cart with defective brakes to the plaintiff and his companion if the defects were known to the defendants or could have been discovered by reasonable inspection.

With respect to whether any defects in the brakes on the golf cart could have been discovered by the defendants, an expert witness for the plaintiff testified:

"* * * I have an opinion satisfactory to myself that if the brakes had failed at the end of nine and a half holes as to whether or not a reasonable inspection would have revealed the defect at the time the cart was rented. The answer is yes.

* * * * * *

"If you had the brakes to the floor and the vehicle was not stopping but instead was gaining speed, that would indicate some defects in the brakes. If you had the pedal all the way to the floor and the cart is still rolling, it would indicate some defects in the brakes."

In this regard, the plaintiff testified:

"I was mashing the brake pedal with my foot as hard as I could, sir. The car was going backwards, at that time. * * * I was still trying to apply the brakes or trying to get the brakes to work. I was pressing upon the pedal."

"On appeal from the granting of a motion for directed verdict, all the evidence tending to support plaintiff's claim must be taken as true and considered in the light most favorable to him, giving him the benefit of every reasonable inference which legitimately may be drawn therefrom, with contradictions, conflicts and inconsistencies therein being resolved in plaintiff's favor. Anderson v. Mann, 9 N.C.App. 397, 176 S.E.2d 365 (1970)." Adler v. Lumber Mut. Fire Insurance Co., 10 N.C.App. 720, 179 S.E.2d 786 (1971). See also Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971).

Evidence that the brakes failed to hold the golf cart on the incline when the plaintiff pressed the brake pedal as hard as he could, when considered with the testimony of the expert witness, is sufficient to raise an inference that the brake lining was defective at the time the cart was rented by the defendants to the plaintiff, and could have been discovered by a reasonable inspection, 46 A.L.R.2d 404, § 8, which would permit, but not compel, the jury to find that the defendants' negligence proximately caused the accident resulting in personal injuries to the plaintiff.

In my opinion the judgment appealed from should be reversed.