Williams v. Eastern Carolina Coach Co.

• Citation: 147 S.E. 435,197 N.C. 12
• Decision Date: 03 April 1929
• Docket Number: 425.
• Parties: WILLIAMS v. EASTERN CAROLINA COACH CO. et al.
• Court: United States State Supreme Court of North Carolina

147 S.E. 435

197 N.C. 12

WILLIAMS v. EASTERN CAROLINA COACH CO. et al.

No. 425.

Supreme Court of North Carolina

April 3, 1929

Appeal from Superior Court, Union County; John H. Harwood, Special Judge.

Action by Mrs. E. J. Williams against the Eastern Carolina Coach Company and others. Judgment for plaintiff, and defendants appeal. New trial granted. In the month of November or December, 1926, the plaintiff was a passenger on one of the motor vehicles of the defendant coach company going from Monroe to Charlotte. She occupied the seat next to the last seat at the rear of the coach. Connecting with the end of this seat and extending across the passageway was a seat called a "flap seat" or "folding seat," which could be raised for the convenience of passengers going to and from the rear seat. It was attached to the wall by hinges; and there was evidence tending to show that a strap and snap were provided by which it could be held in an upright position. The plaintiff's right hand was resting on the end of the seat she occupied. There was evidence tending to show that when the bus turned into Jefferson street it stopped to admit a passenger, and that when it turned into Charlotte avenue the raised seat fell on the plaintiff's hand and inflicted injury from which she subsequently suffered.

In her complaint, the plaintiff alleged that the defendant had negligently failed to provide for the fastening of the seat and had negligently left it unsecured when raised, that she was not given a safe place in which to ride, and that the driver was negligent in the operation of the bus. The material allegations were denied by the defendants; and, at the trial the issues of negligence, contributory negligence and damages were answered in favor of the plaintiff. The defendants excepted and appealed.

John W Hester, of Oxford, and W. B. Love, of Monroe, for appellants.

Vann & Milliken and John C. Sikes, all of Monroe, for appellee.

ADAMS J.

As there was no error in overruling the motion for nonsuit, the pivotal question is raised by an exception to the charge upon the ground that his honor failed to observe the requirements of section 564 of the Consolidated Statutes. This section makes it the duty of the judge to "state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon."' It is contended that this mandate was disregarded in the instructions given the jury upon the first issue, a position which involves the consideration of the evidence pertaining to the issue, the charge in reference to it, and the principles of law which are deemed to be applicable.

There was evidence tending to show that the "folding seat" was a part of the seat occupied by the plaintiff and that it could be raised on hinges against the wall for the benefit of passengers going to or from the rear of the coach; that it had no spring or other device for securing it to the wall; that it was raised and unsecured when the bus left the hotel; and that by the driver's negligence it was caused to fall upon and seriously to injure the plaintiff's hand. There was other evidence tending to show that the defendant had provided a strap and snap for keeping the folding seat in position when raised against the wall, and that the defendant had in other respects used due care to assure the safety of the plaintiff. It was contended and there was evidence from which the jury might have inferred, that the seat, if raised, had been raised by a passenger and left unsecured. Upon the evidence two diverse theories arose. It was argued by the plaintiff that the seat as constructed was inherently defective and unsafe, that the coach company was responsible for its condition and was negligent in maintaining it, and that the company's negligence was the proximate cause of the plaintiff's injury. The defendant insisted that the plaintiff's evidence was uncertain as to the position of the folding seat when she became a passenger; that she did not know whether it was up or down, fastened or unfastened; that it was in fact down when she came in, but, if raised, that it had not been raised by the company; and that the defendant is not liable for an injury caused by an intervening agency.

Upon the first issue, whether the plaintiff had been injured by the negligence of the coach company, the trial judge correctly stated the law as to the burden of proof and as to the constituent elements of actionable negligence: (1) Want of due care, ordinary or due care being such as is commensurate with the hazards incident to the business; (2) injury to the plaintiff; and (3) proximate cause. He gave a synopsis of the material evidence, and a statement of the contentions. Then, after telling the jury to consider the evidence, he concluded his charge upon the first issue by saying that they should answer it in the affirmative if they found by the greater weight of the evidence that the coach company had been negligent and that its negligence had proximately caused the plaintiff's injury, and, if they did not so find, to answer it in the negative. The identical instruction had previously been given; and these two were the only instructions pointing out the circumstances under which the issue should be answered "Yes" or "No." Detached from this single proposition, the remainder of the charge consists of nothing more than a definition of actionable negligence, a statement as to the burden of proof and of the degree of care required of public carriers of passengers, and an abridged recital of the evidence and of the contentions of the parties. For these reasons the charge does not satisfy the demands of the statute. Let us assume, merely by way of illustration, that the jury should find from the evidence, as insisted...