Veach v. Bacon Am. Corp., 444

• Decision Date: 02 March 1966
• Docket Number: No. 444,444
• Citation: 266 N.C. 542,146 S.E.2d 793
• Court: North Carolina Supreme Court
• Parties: Ray A. VEACH v. BACON AMERICAN CORPORATION and H. J. Davis.

Page 793

146 S.E.2d 793

266 N.C. 542

Ray A. VEACH v. BACON AMERICAN CORPORATION and H. J. Davis.

No. 444.

Supreme Court of North Carolina.

March 2, 1966.

Roberts, Frye & Booth and White, Crumpler, Powell, Pfefferkorn & Green, Winston Salem, for plaintiff.

Deal, Hutchins & Minor, Winston Salem, for defendants.

BOBBITT, Justice.

Defendants' Appeal.

The partners purchased the Lodi Buffer with knowledge it was used equipment and upon receipt and installation thereof had knowledge the manufacturer of the buffer wheels (as shown on Exhibits 3 and 4) was the B & J Manufacturing Company.

As to the seller of a chattel known to have been manufactured by another, the rule has been stated as follows: 'A vendor of a chattel made by a third person which is bought as safe for use in reliance upon the vendor's profession of competence and care is subject to liability for bodily harm caused by the vendor's failure to exercise reasonable competence and care to supply the chattel in a condition safe for use.' Restatement, Torts § 401. Under this rule, liability depends upon whether such seller, by the exercise of reasonable care, could have discovered the dangerous character or condition of the chattel. Restatement, Torts § 402; Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 360, 117 S.E.2d 21, and cases cited; Cf. Swaney v. Peden Steel Co., 259 N.C. 531, 538, 131 S.E.2d 601.

If, under the indicated circumstances, the seller knows or should have discovered a latent defect in the chattel of such nature that he, by the exercise of due care, could reasonably foresee it was likely to cause injury in the ordinary use thereof, and the seller fails to warn the buyer of such defect, the seller is liable to a buyer who, without any negligence of his own, makes ordinary use thereof and is injured on account of such defect. Douglas v. W. C. Mallison & Son, 265 N.C. 362, 370, 144 S.E.2d 138, and cases cited.

Admitted evidence, whether competent or incompetent, must be considered in passing on defendants' motion for nonsuit. Early v. Eley, 243 N.C. 695, 700-701, 91 S.E.2d 919, and cases cited; Kientz v. Carlton, 245 N.C. 236, 246, 96 S.E.2d 14.

The evidence, much of it circumstantial in nature, was sufficient, when considered in the light most favorable to plaintiff, to permit, but not to require, the jury to find as facts: (1) That the partners had no prior experience with buffers or other equipment used in connection with recapping tires; (2) that Davis was a man of knowledge and experience with reference to such equipment and the use thereof; (3) that plaintiff, while operating the butter, was injured when struck by a blade that flew out from Exhibit 3 as the result of the breaking of the pins that had held it; (4) that on and prior to March 11, 1961, the pins of Exhibit 3, which held the blades and separators, had become worn to such extent as to constitute a hazard to the operator of the buffer, and that an inspecting thereof by a person having knowledge and experience with such equipment would have disclosed the buffer wheel in this respect was unsafe for further use; and (5) that Davis failed to exercise due care to inspect Exhibit 3 in order to determine whether it was safe or unsafe or failed to exercise due care in his inspection thereof or after inspection thereof failed to warn the partners of the danger of using Exhibit 3 in the operation of the buffer.

The evidence, under the legal principles stated above, was sufficient, in our opinion, and we so hold, to require jury determination as to whether plaintiff was injured on account of the actionable negligence of defendants.

True, there is evidence of plaintiff's contributory negligence. 'When a person has knowledge of a dangerous condition, a failure to warn him of what he already knows is without significance.' Petty v. Cranston Print Works Co., 243 N.C. 292, 304, 90 S.E.2d 717, 725, and cases cited. Plaintiff testified he had disassembled Exhibit 3 a number of times in the process of inserting new blades. Each time the pins were completely exposed except the ends permanently imbedded in one of the plates. H had operated the buffer approximately four months. Even so, his lack of prior experience with such equipment and the assurances given by Davis as to the condition of the equipment are to be considered in determining whether plaintiff, in the exercise of due care, could and should have observed the pins were worn to such an extent that further use of the buffer wheel with these pins was dangerous. In our opinion, and we so hold, plaintiff's evidence does not establish his contributory negligence so clearly that no other reasonable inference may be drawn therefrom. Swaney v. Peden Steel Co., supra.

The conclusion reached is that the issues of negligence and contributory negligence were for jury determination and that defendants' motion for nonsuit was properly overruled.

The court admitted, over objection, opinion testimony of Cecil Gladstone Mock. Mock testified he had been in the tire recapping business for eight years; and, while he was not familiar with a Lodi Buffer, he was familiar with buffer wheels similar to Exhibit 4. He was then questioned as indicated below concerning Exhibit 3. The challenged testimony must be considered in the light of testimony tending to show the facts narrated in the following paragraphs.

McKeown identified Exhibit 3 as the buffer wheel on the buffer when he arrived at the shop and cut off the motor. He testified, over objection, he 'could see that the buffing wheel had flew apart and there was blades on the floor,' and that glass from broken neon lights and other debris 'was all over the floor.' Referring to Exhibit 3, he testified the section 'where the two pins are broken' was out except for the ends of the two pins imbedded permanently in the holes therefor in one of the plates. He testified that blades, some broken and others whole, were scattered around on the floor.

Plaintiff testified he stopped at the shop on his way back to the hospital some two hours after his injury; that Exhibit 3 was 'on the buffer, with one section out of it'; and that he told McKeown 'to take it off and keep it.'

McKeown testified Exhibit 3 was not used 'after the date of the accident'; that the condition of Exhibit 3 at trial was the same as when he found it after the accident except the separators and blades in three of the sections had been removed, thereby exposing the six (unbroken) pins that had held the separators and blades in these three sections; and that, on each of these pins, there were worn places or 'ridges' and 'those are open and visible to the naked eye.' McKeown testified Exhibit 3 was in his possession from the time he found it until he delivered it to plaintiff's attorney, and this occurred 'several years ago' and since then Exhibit 3 had been 'in somebody's possession other than (his) own.'

No missing blades, separators or pins, or fragments thereof, from the missing section, were offered in evidence. There is no evidence as to when and by whom the three complete sections, except for the pins, were removed from Exhibit 3. Nor is there evidence as to where to under what conditions Exhibit 3 has been kept since it passed from McKeown's possession several years ago.

While there is evidence the Lodi Buffer was 'a trade-in,' used equipment, there is no evidence as to the date of its manufacture or of its sale as new equipment. Nor does the evidence disclose by whom it had been used or the time and circumstances of its prior use.

Testimony as to worn places or ridges or notches refers either to markings on the six (unbroken) pins presently available for inspection or to the ends of the two missing pins remaining in the holes in which they were permanently imbedded and the portion of the plate in the area of these holes and portions of pins.

When plaintiff offered Mr. Mock 'as an expert in the field of tire recapping equipment, and particularly buffing wheels,' the court stated: 'I think he can express an opinion, but I do not know I have to find he is an expert.' Suffice to say, there was no...