Hairston v. Alexander Tank and Equipment Co., 80PA83

• Decision Date: 02 February 1984
• Docket Number: No. 80PA83,80PA83
• Citation: 311 S.E.2d 559,310 N.C. 227
• Parties: Bettye HAIRSTON, Administratrix of the Estate of John O. Hairston, Plaintiff, v. ALEXANDER TANK AND EQUIPMENT CO. and Haygood Lincoln Mercury, Inc., Original Defendants, and ALEXANDER TANK AND EQUIPMENT CO., Third-Party Plaintiff, v. James Fulton WHITBY and Two-Way Radio of Charlotte, Inc., Third-Party Defendants.
• Court: North Carolina Supreme Court

Page 559

311 S.E.2d 559

310 N.C. 227

Bettye HAIRSTON, Administratrix of the Estate of John O.

Hairston, Plaintiff, v. ALEXANDER TANK AND EQUIPMENT CO. and Haygood Lincoln

Mercury, Inc., Original Defendants, and ALEXANDER TANK AND EQUIPMENT CO., Third-Party Plaintiff, v. James Fulton WHITBY and Two-Way Radio of Charlotte, Inc.,

Third-Party Defendants.

No. 80PA83.

Supreme Court of North Carolina.

Feb. 2, 1984.

Tucker, Hicks, Sentelle, Moon & Hodge, P.A. by John E. Hodge, Jr., Fred A. Hicks and David B. Sentelle, Charlotte, for plaintiff.

Hasty, Waggoner, Hasty, Kratt & McDonnell by Robert D. McDonnell and William J. Waggoner, and Golding, Crews, Meekins, Gordon & Gray by Fred C. Meekins and Henry C. Byrum, Jr., Charlotte for defendant Alexander Tank and Equipment Co.

Hedrick, Feerick, Eatman, Gardner & Kincheloe by J.A. Gardner III and Scott M. Stevenson, Charlotte, for defendant Haygood Lincoln Mercury, Inc.

MARTIN, Justice.

John O. Hairston's death was caused by a collision on the South Fork River Bridge on Interstate 85 in Gaston County on 17 April 1978. Taken in the light most favorable to plaintiff, her evidence tends to establish the following facts: On Friday, 14 April 1978, Hairston negotiated the purchase of a 1978 Lincoln Continental automobile at Haygood Lincoln Mercury, Inc. in Lowell, North Carolina. The automobile as originally received by Haygood from the Ford Motor Company had been equipped with optional turbine spoke wheels. These wheels were included on the original invoice. When Hairston returned to Haygood to complete the transaction and pick up the car the following Monday, 17 April 1978, he found the Lincoln equipped with standard steel wheels. At his request and while he waited, Haygood's service department employees replaced the standard wheels with turbine wheels from another automobile, installed a CB radio, and undercoated the car. Although Haygood's normal procedure was to test drive a new car before delivery to a customer, no one road tested the Lincoln prior to turning it over to Hairston. The service manager did not make any inspection of the car after the wheels were changed.

A few minutes past five o'clock that afternoon, Hairston was driving his new automobile north on Interstate 85 toward Charlotte. He had entered I-85 from North Carolina Highway 7, the Lowell-McAdenville Road, which crosses over the interstate approximately six-tenths of a mile south of the South Fork River Bridge.

Traffic was moderate. It was daylight and the light was good. The road was dry. Proceeding north from N.C. 7 to the South Fork River Bridge, I-85 curves slightly to the right, then is straight for at least a quarter of a mile to the bridge. The interstate is downgrade from N.C. 7 to the South Fork River Bridge, and visibility is unobstructed from the end of the entrance ramp at N.C. 7 to the bridge. There are two northbound lanes of I-85 over the South Fork River. The downgrade continues on the bridge, levelling out before the bridge is crossed.

When Hairston had traveled approximately 3.5 miles from the Haygood dealership and was approaching the South Fork River bridge on I-85, the left rear wheel of the new Lincoln car came off and went down an embankment on the right side of the interstate. Gouge marks in the roadway made by the left rear hub on the Hairston car extended for a total of 208 feet from a point thirty-eight feet before the beginning of the bridge to where Mr. Hairston brought the automobile to a stop, 170 feet onto the bridge, in the far right lane of travel. There were concrete bridge abutments on the left and right sides of the bridge. There were no shoulders on the road where it crossed the bridge.

James Fulton Whitby, driving a 1970 Ford Econoline van owned by Two-Way Radio of Charlotte, Inc. had seen the Hairston vehicle as it entered I-85 from the Lowell exit ramp and had been traveling several car lengths behind Hairston, there being one passenger car between his van and Hairston's car. After the wheel came off the Lincoln, the passenger car between Whitby and Hairston changed into the left-hand lane of travel and proceeded north, going around the Hairston car where it had come to a stop on the bridge. Whitby stopped his van approximately twenty feet behind the disabled Lincoln, set his hand brakes, activated his two-way emergency flashers, and got on his mobile telephone to call for help.

Mr. Hairston, having turned on the Lincoln's flashers, got out of his car. He looked at the left rear hub where his wheel had been, went to the other side of the car and looked, then went to the middle of the rear of his car where he was attempting to open his trunk. Mr. Whitby, meanwhile was calling for help, and as he observed in his outside left rearview mirror, traffic in the right lane was moving with no difficulty over into the left lane to bypass the stopped vehicles.

Among the approaching vehicles Whitby saw in his rearview mirror after he stopped behind Hairston was the G.M.C. flatbed truck operated by Robert F. Alexander, still about a quarter of a mile away. Within seconds the right front end of Alexander's truck struck the left rear of the Two-Way Radio van, knocking it into the rear of the Hairston automobile. Mr. Hairston, who was between the van and his car at the time of the collision, was killed. Approximately ninety seconds had elapsed from the time Whitby had first stopped his van behind the decedent until he was struck by Alexander.

Examination of the left rear wheel assembly of the Lincoln following the accident revealed that none of the lug bolts had been stripped or otherwise damaged. The brake drum showed signs that it had come loose and fallen down onto the lug bolt threads. The outside of the aluminum wheel was marked by "chewed up" aluminum indicating where the lug bolts had spun off. An expert witness called by plaintiff testified that the lug nuts used on the left rear wheel of the Lincoln had a right-hand thread which if left loose would unscrew when the wheel rolled forward. In his opinion, the wheel on the Lincoln had come off, therefore, because the lug nuts had not been tightened on the wheel studs.

The jury found both defendants negligent, whereupon defendant Haygood argued the following to the court in support of its motion for judgment notwithstanding the verdict:

2. That the evidence unequivocally reflects that the negligence, if any, of Haygood Lincoln Mercury, was not a proximate cause of the death of the decedent, John O. Hairston;

3. That the evidence has failed to show active negligence on the part of the defendant Haygood Lincoln Mercury, Inc.;

4. That the negligence, if any, of Haygood Lincoln Mercury, was insulated as a matter of law by the negligence and actions of the defendant Alexander Tank and Equipment Company, Inc.

In its unanimous opinion, the Court of Appeals upheld Judge Lewis's decision to allow the Haygood motion, finding:

The record clearly shows sufficient evidence from which the jury could find Haygood was negligent in failing to tighten the lug bolts on the left rear wheel and in failing to check the new car before delivery. These acts of negligence, however, are not the proximate cause of the death of plaintiff's intestate, and such negligent acts of Haygood are insulated by the subsequent negligent acts of Alexander.

60 N.C.App. at 327, 299 S.E.2d at 794.

We do not so interpret the law. On the facts of this case, defendant Haygood's negligence was one of the proximate causes of Hairston's death. At no time was this liability superseded or excused by the subsequent negligence of Alexander Tank and Equipment Company, Inc. which occurred all too foreseeably on I-85 within one and one-half minutes of decedent's automobile becoming disabled on the interstate.

In order to establish actionable negligence, plaintiff must show (1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of the injury. Murray v. R.R., 218 N.C. 392, 11 S.E.2d 326 (1940); Whitt v. Rand, 187 N.C. 805, 123 S.E. 84 (1924). In determining whether the Court of Appeals properly affirmed the trial court's entry of judgment notwithstanding the verdict in favor of defendant Haygood, we must ask, as we would in the case of a directed verdict, Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973): Did the evidence at trial, when taken in the light most favorable to the plaintiff and with the benefit of all favorable inferences, either (1) fail to establish a prima facie case of negligence on the part of Haygood, or (2) establish beyond question that the negligence of Haygood was insulated as a matter of law by the intervening negligence of defendant Alexander Tank? Norwood v. Sherwin Williams Co., 303 N.C. 462, 279 S.E.2d 559 (1981); Summey v. Cauthen, supra.

We agree with the Court of Appeals that the record clearly reveals sufficient evidence from which a jury could find the first requisite of liability, negligence. That Haygood violated a legal duty to this plaintiff in failing to tighten the lug bolts on the left rear wheel and in failing to check the new car before delivery is self-evident.

For reasons which follow, however, it is also our opinion that from the evidence presented at trial the jury could reasonably infer that defendant's negligence was a proximate cause of Hairston's death. The jury could further infer from the facts in this case that while the subsequent negligence of defendant Alexander Tank joined with Haygood's original negligence in proximately causing the death of Hairston, it did not supersede the negligent acts of Haygood and thereby relieve Haygood of liability.

Proximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff's injuries, and...