Auman v. Crouse Dairy Products, Inc.

BRITT, Judge.

Plaintiff first assigns as error the exclusion of an answer of an expert witness to a hypothetical question propounded by plaintiff. The court explained that its ruling was based on the fact that there was no evidence that the condition of the wheel (rim), then in evidence, was the same as it was at the time of the accident some four years prior to the trial. The witness was allowed to. answer for the record. Plaintiff rephrased his hypothetical and the witness was allowed to answer. As plaintiff now contends, there was evidence that the conditions were the same; however, comparing the answers to the two questions, we find that they are substantially the same and this excluded fact was not crucial to the witness’ answer. As plaintiff was able to establish what he sought on the first question, we can perceive no prejudice. The assignment of error is overruled.

Plaintiff contends on his second assignment of error that there was sufficient evidence of actionable negligence to withstand defendant’s motion for directed verdict and relies heavily on Stroud v. Transportation Co., 215 N.C. 726, 3 S.E. 2d 297 (1939). The evidence in Stroud tended to show: The inside tire of dual wheels on a truck had lost air and employees of the defendant had stopped at a service station to reinflate the tire. The employees tried to do this themselves but were unable to do so because the tire tube had a short valve stem which defendant had installed in place of a long valve stem provided for the tube orignally. The proximity of the two wheels limited access to the shortened stem to such a degree that an 18 year old employee of the defendant, who had a smaller hand, offered his service. In so doing, his hand was mashed when the inside wheel flew loose. The evidence further showed that short valve stems were not as safe as the long ones and that defendant itself, in inflating tires on its trucks, used a long air hose chuck, or nozzle, as a safety device; that the truck had been driven eighteen or twenty miles with a slack tire on the inner wheel, and although presumably supported by the outer fully inflated tire, the supporting rim or flange of the inner tire may have been disarranged from its proper assemblage by bumping on irregularities in the road, this effect being more easily brought about on account of the increase of weight upon the inflated tire.

In Stroud, the Supreme Court held that plaintiff’s evidence was sufficient to go to the jury; we quote from the opinion (page 729) : “The defendant owed to this plaintiff the duty of refraining from subjecting him without warning to danger from a condition which was known to it, or could have been known by the exercise of due care, and ‘there is a general duty owing to others of not injuring them by any agency set in operation by one’s act or omission.’ 45 C.J., p. 645; Cashwell v. Bottling Works, 174 N.C., 324, 93 S.E., 901.”

We think Stroud is clearly distinguishable from the case at hand. Here, the only evidence that would tend to show notice to defendant of a dangerous condition was to the effect that the exterior of the nuts holding the lugs was worn. But there was no showing that the worn nuts caused the accident or that a reasonable man would be led to believe that the rim would disengage if the lug nuts were worn. Testimony showed that the worn condition of the edges of the rim would not be noticed by the ordinary person. Crouse did not observe the condition and there is no evidence that defendant created the condition. Rather the evidence is to the effect that the condition would naturally occur from use.

We perceive no violation of any duty defendant owed plaintiff, therefore, the trial court properly allowed defendant’s motion for directed verdict and the assignment of error relating thereto is overruled. The judgment appealed from is

Affirmed.

Judges Parker and Vaughn concur.