DocketNumber： Record No. 5241
Judges： Eggleston
Filed Date： 6/12/1961
Status： Precedential
Modified Date： 11/15/2024
delivered the opinion of the court.
Robert E. Jones, Jr., the operator of a service station, was injured while inflating a tire on a truck owned by Ervin J. Bush when the tire assembly blew apart and struck him. Jones filed an action at law against Bush to recover damages for his injuries which, he alleged, were caused by the negligence of Bush in that the latter failed to warn him of the condition of the tire and its assembly and which he (Bush) knew or ought to have known was unsafe and dangerous. After Bush had filed a general denial of negligence and an allegation that Jones himself was guilty of contributory negligence, there was a trial before a jury. At the conclusion of the plaintiff’s evidence the lower court struck such evidence on the grounds that there was no showing that the defendant, Bush, was guilty of any negligence which was the proximate cause of the plaintiff’s injuries, and that even if such negligence had been shown, the plaintiff was guilty of contributory negligence. A verdict and judgment for the defendant necessarily followed. The plaintiff has appealed claiming that under the evidence adduced the negligence of the defendant and the contributory negligence of the plaintiff were for the jury. The parties will be referred to as they appeared in the lower court.
The evidence is without dispute. Jones, the plaintiff, owns and operates a service station in the town of Marion, Virginia, and had been in that business for two and one-half years before the accident. On October 7, 1957, the defendant, Bush, brought to the service station a Ford truck which he had recently acquired and after purchasing gas and oil, requested that Jones “gauge his tires” to 90 pounds. Jones inflated the right front tire without mishap, but upon placing the air nozzle on the outside right rear dual tire the rim assembly blew apart, “just in a flash,” as Jones testified, striking and severely injuring him.
The witnesses agreed that the tire rim and wheel assembly were new, in apparently good order, and without any visible defect. The rim and assembly were described as “a drop center wheel, interlock.”
Bush acquired the truck “the last of September” 1957 in Columbus, Ohio, from which point it was driven to Marion, Virginia, a distance of about 300 miles. Since the truck carried no load on this trip the pressure in the rear tires was reduced to 30 pounds in order to prevent the vehicle from “bouncing around” on the road. After reaching Marion the truck was operated with the reduced air pressure without mishap for “a week or more” preceding the day of the accident. Following the accident the tire rim was reassembled, the truck was put back in use and operated without mishap.
The gist of the plaintiff’s case is that the defendant knew or ought to have known that the deflated tire made the rim assembly dangerous and unsafe and that he was negligent in not warning the plaintiff of this situation.
The plaintiff relies upon the well-settled principle that when one person puts a thing in charge of another which he knows, or in the exercise of ordinary care should have known, to be dangerous or to possess characteristics which, in the ordinary course of events, are likely to produce injury, he owes a duty to such person to give reasonable warning or notice of such danger. Stroud v. Southern Oil Transp. Co., 215 N. C. 726, 3 S. E. 2d 297, 299, 122 A. L. R. 1018. This principle has been applied in cases such as that with which we are here concerned. Blashfleld’s Cyclopedia of Automobile Law and Practice, Vol. 7A, § 5011, p. 534; 61 C. J. S., Motor Vehicles, § 741, p. 887; Stroud v. Southern Oil Transp. Co., supra.
In order to bring himself within the stated principle, the burden was on- the plaintiff, Jones, to show that at the time the defendant, Bush, delivered the car to the plaintiff he, the defendant, knew, or by the exercise of ordinary care should have known, that the tire assembly was dangerous and unsafe. While the evidence shows that the defendant knew that the pressure in the tire had been reduced, there is no showing that he knew or should have known that this rendered
The plaintiff relies upon two statements made by the defendant, Bush, as showing that he knew before the accident that the tire assembly was unsafe. Howard Malloyed, an attendant at the service station, testified that shortly after the accident Bush stated that he had let the air out of the tire. Whereupon Malloyed asked him: “With the air let out and running the tire low, won’t that let that lock rim work in there?” to which Bush, the defendant, replied: “It would.”
Again, the plaintiff testified that when the defendant visited him in the hospital shortly after the accident and they were discussing the cause, they “had agreed” that the reduced pressure was “probably the cause of the wheel becoming unlocked and blowing out when we put the tire pressure back in it.”
These statements, the plaintiff says, show that the defendant “actually knew” that the reduced pressure rendered the tire assembly unsafe. We do not agree with this contention. While these statements may be taken as an admission that the defendant had concluded or knew after the accident that the reduced pressure caused the tire assembly to become unlocked, they do not show that before the accident he knew or should have known that this would occur. The fact that he had operated the truck in this condition without mishap for a considerable time and distance negatives such knowledge.
The plaintiff cites Stroud v. Southern Oil Transp. Co., supra, 215 N. C. 726, 3 S. E. 2d 297, 122 A. L. R. 1018, as supporting his position. There it was held by a divided court that a service station attendant injured while inflating a truck tire was entitled to recover damages of the owner of the vehicle. The majority of the court held that the sufficiency of the evidence to sustain the negligence of the defendant truck owner in failing to warn the attendant of the de
In the case before us there is no evidence that the rim assembly was damaged by the operation of the truck at the reduced air pressure. Indeed, the evidence is to the contrary. As has been said, after the accident the tire assembly was restored and the wheel operated without mishap. Nor is there any evidence that the tire assembly was defective.
We agree with the lower court that the plaintiff’s evidence fails to show that the defendant was guilty of any negligence which was the proximate cause of the accident and of the plaintiff’s injuries. To sustain the contention of the plaintiff here would be tantamount to saying that the owner of a motor vehicle who delivers it to an operator of a service station, or a repairman, may be held liable for a hidden defect in .the mechanism which renders it unsafe and of which the owner has no knowledge. To avoid such liability the owner would be required before delivering the vehicle to make, or cause to be made, an expert examination to discover any such hidden defect. The authorities agree that the owner is under no such duty. As is said in Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 7A, § 5011, p. 534, “[W]hile the owner of an automobile, delivering it to a repairman for repairs, owes to him the duty to disclose to him any defect in the mechanism which may render it unsafe or dangerous of which such owner has knowledge, such owner does not owe to him the duty to employ the skill of an expert mechanician to malte an examination to discover such defect before delivering the automobile for repairs.” See also, 61 C. J. S., Motor Vehicles, § 741, p. 887; Varas v. James Stewart & Co., 223 Mo. App. 385, 17 S. W. 2d 651.
Having reached the conclusion that there was no showing of negligence on the part of the defendant, we need not consider whether the plaintiff was guilty of contributory negligence.
The judgment is
Affirmed.