Roberts v. William N. and Kate B. Reynolds Memorial Park, No. 69

• Docket Nº: No. 69
• Citation: 281 N.C. 48, 187 S.E.2d 721
• Case Date: April 12, 1972
• Court: United States State Supreme Court of North Carolina

Page 721

187 S.E.2d 721 281 N.C. 48 D. I. ROBERTS
v.
WILLIAM N. AND KATE B. REYNOLDS MEMORIAL PARK, also known as
Tanglewood Park, and Grady Shumate. No. 69. Supreme Court of North Carolina. April 12, 1972.

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

Deal, Hutchins & Minor, by John M. Minor, and William K. Davis, Winston-Salem, defendant appellees.

BRANCH, Justice.

The sole question presented by this appeal is whether the trial judge erred in granting defendants' motion for a directed verdict.

Page 724

It is the duty of a bailor for hire to see that the vehicle bailed is in good condition. While he is not an insurer, he is liable for injury to the bailee or a third person for injuries proximately caused by a defect in the vehicle of which he had knowledge or which he could have discovered by reasonable care and inspection. Hudson v. Drive It Yourself, Inc., 236 N.C. 503, 73 S.E.2d 4.

A motion for a directed verdict presents the question of whether, as a matter of law, the evidence offered by the plaintiff, when considered in the light most favorable to the plaintiff, is sufficient to be submitted to the jury. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396. The court may direct a verdict against the party having the burden of proof when there is no evidence in his favor. Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297.

We deem in unnecessary to discuss plaintiff's allegation that defendants left rocks or other objects dangerous to golf carts on the golf course, since he offered no direct evidence which [281 N.C. 54] would support an inference that any objects of a dangerous nature were present on the golf course.

Plaintiff contends that his injury was caused by Defective brakes on the golf cart and that defendants knew, or by the exercise of reasonable care should have known of the defect. In this connection plaintiff's evidence shows that the brakes on the golf cart could fail in two ways, viz: (1) sudden failure caused by the snapping of the brake cable, and (2) gradual failure of the brakes caused by wear on the linings of the brake bands.

Plaintiff's expert witness testified concerning sudden failure of the brakes as follows: 'In order to sever this cable or cause this cable to break it is going to take a lot. There would be practically no way to break it, in normal driving around, suddenly, unless the cable, I'd say, is four or five years old and worn a lot, you can't break it, not with a foot.' Plaintiff's evidence showed that the golf cart in which plaintiff was injured was not more than one year old.

As to the gradual failure of the brakes, plaintiff's evidence showed that a visual inspection would reveal the wear on the linings of the brake bands, and that an annual inspection would be reasonable.

Plaintiff's evidence failed to show that the cable snapped or that the linings on the brake bands were worn.

We quote the following excerpts from plaintiff's testimony:

Q. What, if anything, did Mr. Shumate say to you?

MR. MINOR: Objection.

THE COURT: Well, I don't know what he is going to say. I guess at this point I will admit it as against Shumate and not the others. I don't know what he is going to say. Sustained as to, well, as to the corporate defendant, I reckon I will say.

. . . Then the park manager came up--I assume that he was the park manager; I never did see the gentleman because of the way that I was lying--and Mr. Shumate told him--

[281 N.C. 55] MR. MINOR: Well, objection now, if the Court please.

THE COURT: Well--

MR. MINOR: He is talking about someone he doesn't know about.

THE COURT: Sustained again as to the corporate defendant, Tanglewood Park, Go ahead.

. . . Later Mr. Shumate came back to me and he says, 'If you are familiar with these carts, you should know that they have no brakes on them going backwards.' I was still lying on the ground at that time, sir.

MR. POWELL: I submit that statement is competent against the corporate defendant as well as Mr. Shumate.

Page 725

THE COURT: Well, of course, he has got an exception to all this. I will let that in.

Plaintiff strongly contends that this statement was sufficient evidence of defendants' negligence to carry the case to the jury.

Plaintiff failed to allege that defendants rented the golf cart knowing that it had no brakes when going backward. We must therefore decide the effect of this variance in the allegations and proof.

Prior to the adoption of the new Rules of Civil Procedure it was well recognized that a plaintiff's recovery had to be based on allegations in his complaint, and that when there was a material variance between allegations and proof, nonsuit was proper. Conger v. Ins. Co., 266 N.C. 496, 146 S.E.2d 462; Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786. No issues were submitted to the jury which were not raised by the pleadings and supported by competent evidence. Bowling v. Bowling, 252 N.C. 527, 114 S.E.2d 228. A motion for nonsuit is no longer proper in a civil action. In an action tried by the court without a jury, a defendant may move for A dismissal on the ground that upon the facts and the law plaintiff has shown no right to relief. Ch. 1A--1, Rule 41(b). When a case is tried by a jury, as here, a defendant may move for a Directed verdict to test the sufficiency of the evidence to go to the jury. Ch. 1A--1, Rule 50(a). See Kelly v. Harvester Co., supra.

[281 N.C. 56] By enactment of G.S. 1A--1, the legislature adopted the 'notice theory of pleading.' Under 'notice pleading' a statement of claim is adequate if it gives sufficient notice of the claim asserted 'to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of Res judicata, and to show the type of case brought.' Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161.

The North Carolina pleadings and forms differ from the federal pleadings and forms in that federal Forms 9 and 10, complaints for negligence, do not require specific allegations of acts of negligence. Under Rule 84 of G.S. 1A--1, Forms 3 and 4 do require such specific allegations. Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Intramural Law Review 1.

Under the new Rules the trial must proceed within the issues raised by the broad pleadings unless the pleadings are amended. The new Rules achieve their purpose of insuring a speedy trial on the merits of a case by providing for and encouraging liberal amendments to conform pleadings and evidence under Rule 15(a), by pretrial order under Rule 16, during and after reception of evidence under Rule 15(b), and after entry of judgment under Rules 15(b), 59 and 60. Such amendments are made upon motion and with leave of court, by express consent, and by implied consent.

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