Mann v. Virginia Dare Transp. Co., Inc.

• Decision Date: 31 August 1973
• Docket Number: No. 35,35
• Citation: 283 N.C. 734,198 S.E.2d 558
• Parties: Pernell R. MANN v. VIRGINIA DARE TRANSPORTATION COMPANY, INC., and Carolina Coach Company. Sallie Baum TILLETT v. VIRGINIA DARE TRANSPORTATION COMPANY, INC., and Carolina Coach Company.
• Court: North Carolina Supreme Court

Page 558

198 S.E.2d 558

283 N.C. 734

Pernell R. MANN v. VIRGINIA DARE TRANSPORTATION COMPANY, INC., and Carolina

Coach Company.

Sallie Baum TILLETT v. VIRGINIA DARE TRANSPORTATION COMPANY, INC., and Carolina

Coach Company.

No. 35.

Supreme Court of North Carolina.

Aug. 31, 1973.

J. Kenyon Wilson, Jr.; White, Hall & Mullen, by Gerald F. White, and John H. Hall, Jr., Elizabeth City, for Virginia Dare Transp. Co., Inc., defendant-appellant.

James, Speight, Watson & Brewer, by W. W. Speight, and William C. Brewer, Jr., Greenville, Allen, Steed & Pullen, by Arch T. Allen III, Raleigh, for Carolina Coach Co., defendant-appellee.

SHARP, Justice:

Transportation Company's liability to plaintiffs has been finally determined. It did not appeal from the judgments which plaintiffs recovered against it on account of the injuries they sustained in the bus accident in suit. This appeal presents the questions (1) whether Transportation Company offered any evidence tending to show that negligence on the part of Coach Company caused the bus accident in which plaintiffs were injured; and (2), if so, whether Coach Company's liability to Transportation Company is for indemnity or contribution.

Transportation Company, a common carrier, is not an insurer of its passengers; it is liable only for negligence proximately causing injury to them. However, a carrier owes to the passengers whom it undertakes to transport 'the highest degree of care for their safety so far as is consistent with the practical operations and conduct of its business.' White v. Chappell, 219 N.C. 652, 659, 14 S.E.2d 843, 847 (1941). See Harris v. Greyhound Corp., 243 N.C. 346, 90 S.E.2d 710 (1956); Garvey v. Greyhound Corp., 228 N.C. 166, 45 S.E.2d 58 (1947); 14 Am.Jur.2d Carriers § 918 (1964).

The high degree of care, which a carrier operating under a public franchise owes to its passengers, is a nondelegable duty. See Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141 (1880); Dixie Stage Lines v. Anderson, 222 Ala. 673, 134 So. 23 (1931); Cotton v. Ship-by-Truck Co., 337 Mo. 270, 85 S.E.2d 80 (1935); Simpson v. Gray Line Co., 226 Ore. 71, 358 P.2d 516 (1961). See also Morgan v. Chesapeake & Ohio Ry. Co., 127 Ky. 433, 105 S.W. 961 (1907); Western Maryland R.R. v. State, 95 Md. 637, 53 A. 969 (1902); Virgil v. Riss & Co., 241 S.W.2d 96 (Mo.App.1951); Prosser, Law of Torts 470 (4th ed. 1971); 41 Am.Jur.2d Independent Contractors § 39 (1968). '(A) passenger who sustains an injury by reason of the fact that the obligatory measure of care was not exercised is entitled to hold the carrier responsible, although the conditions or occurrences which caused the injury resulted from the negligence of an independent contractor.' Annot., 29 A.L.R. 736, 784 (1924).

'Among the duties falling upon a common carrier of passengers are the important ones of providing adequate conveyances with sufficiently strong and serviceable equipment for the safe transportation of its passengers, and of inspecting such conveyances and equipment at proper intervals and keeping them in good repair.' 14 Am.Jur.2d Carriers § 1028 (1964). See 13 C.J.S. Carriers § 735 (1939). The purchase of equipment from a reputable source 'does not relieve the carrier of the further duty to inspect and test the equipment or appliances, and hence where an accident results from a defect which might have been discovered by a proper test made by the carrier, it is liable therefor.' 14 Am.Jur.2d Carriers § 1030 (1964). Nor may a carrier relieve itself of the duty to exercise the highest degree of care to provide safe buses by leasing its transportation facilities from another carrier or corporation which has contracted to furnish and keep such equipment in proper condition. '(T)he carrier cannot delegate the performance of this duty and escape liability for its nonperformance.' 13 C.J.S. Carriers § 741(a) (1939). See 14 Am.Jur.2d Carriers § 898 (1964).

Thus, if the bus which Coach Company delivered to Gibbs on the morning of September 17, 1968 contained a pre-existing defect in the steering mechanism which could or should have been discovered by a proper inspection, and if the defect was the proximate cause or a proximate cause of plaintiffs' injuries, Transportation Company would be liable to plaintiffs.

In Simpson v. Gray Line Co., Supra, the plaintiff passenger was injured in a bus accident which occurred when a tire blew out. The defendant bus company attempted to avoid liability by showing that its tires were rented from a third party. The Oregon Supreme Court said: '(T)his fact (was) immaterial in determining the issue before the court. There is a duty upon the carrier to furnish tires that are fit for the intended use. . . .' Id. at 74, 358 P.2d at 517. ' (T)he defendant-carrier could not delegate its duty to a third party, I.e., to a tire company which supplied tires on a rental agreement. Pennsylvania Co. v. Roy, supra. . . . ' Id. at 76, 358 P.2d at 518.

Plaintiffs in this case made out a prima facie case of actionable negligence against Transportation Company by the introduction of evidence tending to show that they were injured when the bus in which they were passengers, without a prior collision or other apparent cause, ran off the highway into a ditch and struck a culvert. Greene v. Nichols, 274 N.C. 18, 161 S.E.2d 521 (1968); Simpson v. Gray Line Co., Supra; 2 Stansbury, North Carolina Evidence § 227 (Brandis rev. 1973); Annot., 79 A.L.R.2d §§ 23(b), 31(a) (1961); 14 Am.Jur.2d Carriers § 1161 (1964); 13 C.J.S. Carriers § 764(f)(4) (1939). Thus, plaintiffs would have been entitled to go to the jury as against Transportation Company without plaintiff Mann's testimony that the bus driver consumed 'soda and cake' while operating the bus and then threw or attempted to throw the bottle out the window just before the bus ran off the highway. The jury, therefore, was not required to accept this testimony in order to answer the issues in favor of plaintiffs. We, of course, cannot know upon what theory the jury answered the issues of negligence in favor of the plaintiffs. The judge's charge is not in the record, but the presumption is that he submitted the case to the jury upon every theory which the evidence justified and 'instructed correctly on every principle of law applicable to the facts.' Jones v. Mathis, 254 N.C. 421, 428, 119 S.E.2d 200, 205 (1961).

The specific questions which determine this appeal are (1) whether Transportation Company offered evidence sufficient to sustain a finding that a defect in the steering mechanism caused the leased bus to leave the highway; and (2), if so, whether Coach Company, in the exercise of proper care under the circumstances, could have discovered the defect prior to the time it delivered the bus to Gibbs.

On Coach Company's motion for a directed verdict all the evidence which tends to support Transportation Company's case against it must be taken as true and considered in the light most favorable to Transportation Company. Transportation Company is entitled to the benefit of every reasonable inference which may legitimately be drawn from the evidence. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971); Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969); Phillips, 1970 Supplement to 2 McIntosh, N.C.Practice and Procedure § 1488.15. Therefore, on this motion, Gibbs' statement that he neither threw nor attempted to throw a bottle from the bus and had no cake or soft drink on the bus at any time during the trip on which plaintiffs were injured must be accepted as true, and plaintiff Mann's testimony that the bus ran off the road just as Gibbs prepared to throw a soda bottle out the window must be disregarded. It follows that, for the purpose of this motion the only evidence of negligence on the part of Transportation Company is the fact that the bus suddenly left the highway in a curve.

Gibbs' testimony negated any negligence in his manner of operating the bus. His statement that, as he approached the curve in which the bus left the road, he turned the steering wheel as usual but 'the wheels did not answer to the steering wheel'; that although he kept turning the wheel to the left and applied his brakes, the bus kept to the right and into the ditch was corroborated by plaintiff Mann. She said that before the bus went into the ditch the driver was trying to pull it back onto the road but it would not come; that 'he was turning the steering wheel to his left but the bus wouldn't go back and the bus went on the shoulder. . . .'

The foregoing evidence tends to show that a defect in the steering mechanism caused the bus to go into the ditch and to negate Coach Company's contentions (1) that the steering gear was damaged by its collision with the culvert, and (2) that 'there was absolutely no evidence of any defect existing prior to the accident.'

The evidence does not show the exact date on which repairs began. Coach Company's president, in answer to interrogatories not specifically directed to this point, said that the repairs were not begun until after 1 October 1968, and they were completed about 15 December 1968. It is a fair inference that repairs had not been begun at the time Transportation Company's expert damage analyst, Mr. Jeffries, examined the bus on 11 October 1968. At that time the whole right front section and the right side of the body was damaged and misaligned; the floor of the bus was buckled and the power steering cylinder disconnected from the extension of the steering arm. Nothing he saw suggested that any repairs had then been made or attempted.

Interrogatories answered by Coach Company's president on 23 March 1972 disclosed that on the day after the accident the bus was towed from the scene of the accident to Coach Company's garage in Norfolk. Coach Company found no missing parts from the steering mechanism at the scene.

On the day after the accident, in Norfolk, 'a general inspection was made of all the damage...