Dеfendant’s principal assignment of error is directed to the refusal of the court to allow its motion for nonsuit. It argues here that there is no evidence to support the allegations of negligence, strenuously contending that all the evidence shows that the violent movement of the plane, which admittedly happened, occurred at a time and place where there was no reason to suspect any abnormal atmosрheric conditions, asserting that the violent movement was due to what it refers to as clear-air turbulence.
The law applicable to this case was stated by
Moore, J.,
in
Jackson v. Stancil,
With apparent approval of the law enunciated in the Standi case, supra, defendant requested the court in charging the jury to inform it that defendant contended: “The area of the mountain ridge including Grandfather Mountain usually or generally had some rough air or turbulence for airplanes flying across it, аnd for this reason Piedmont Airlines on the flight from Tri-Cities Airport to Hickory Airport as standard operating procedure required that the sign requiring that seat belts be fastened be on for the passage over this area. The defendаnt says that this was a general precaution followed whether actual turbulence was expected, or not, or whether actual turbulence was encountered, or not.
“The defendant says that no rough air or turbulenсe was encountered in the area where it might have been expected and that the airplane had proceeded beyond and east of the mountain area when the violent downdraft occurred.”
The сase was tried on defendant’s theory of the law. The jury was told that plaintiff, to recover, had to establish (1) the injury occurred in an area where defendant knew downdrafts were apt to occur and for that reason owed a duty to warn its passengers, and (2) it failed to give such warning.
The question we are now required to answer is: Was there any evidence on which the jury could find these basic facts? We are not *701 called upon nor are we permitted to wеigh the evidence. If a trial court is of the opinion that the jury has not properly evaluated the evidence, and its findings will result in a miscarriage of justice, it may prevent such injustice by setting the verdict aside.
Taking the requisite facts in inverse order, the record discloses plaintiff testified: “Before I got up out of my seat, the seat belt light was not on. I looked at it. I don’t know exactly where the flight steward was, but I had asked him for a cup of water a few minutes prior to getting up . . . and as I got up and got to the door, he handed me a cup of water ... I have false dentures and wanted to clean my teeth. That was the purpose for which I wanted the water. I don’t know where the flight steward went after he handed me the water as I went directly inside.” According to plaintiff the plane dropped just after he got in the Blue Room. On cross-examination he said: “When I stood up the last time to go to the Blue Room, the seat belt light was not on . . . The cup which the flight attendant handed me was a small paper cup with water in it, a flat-bottomed cup.”
The flight attendant testified that the light warning passengers to fasten their seat belts came on аt least five minutes prior to the time plaintiff was injured and remained on until after the injury. He said that the cup of water was given to plaintiff when he was in his seat and not as he was entering the Blue Room. There is evidence from other passengers tending to corroborate the flight attendant’s statement that the warning light was on. But to determine whether it was or was not would be to weigh the evidence. We must accept plaintiff’s version.
Did the injury occur in an arеa where air turbulence could be expected? Plaintiff testified: “. . . it was around Grandfather Mountain. I don’t know whether it occurred before we reached Grandfather Mountain or after we reached Grandfather Mountаin . . .” Defendant’s evidence on this question was more specific. It was, we think, in part as least, susceptible to inferences favorable to plaintiff’s contention. The co-pilot testified: “It (warning light) was turned off at apprоximately an altitude of 4,000 to 5,000 feet. It was turned on next in the vicinity of Heaton . . . The seat belt light was turned on over the village of Heaton, which is about ten miles previous to entering the mountain area.” The pilot said the light “was next turnеd on approximately three or four minutes prior to approaching Grandfather Mountain, I would say in the vicinity of Heaton.” Defendant in its brief informs us: “Because Heaton is in the right location and is always identifiable in flight by the radiо range, it is the position on eastbound flights where the seat belt sign is turned on.” The evidence fails to disclose such a definite point east of the mountains *702 where the area of turbulence terminates. It may be inferred from the tеstimony of the plane officials that Lenoir is such a point.
Defendant also informs us by brief that the distance from TriCities to Heaton is 33 miles, to Lenoir, 62 miles, and to Hickory, 76 miles.
The co-pilot testified: “The air speed would have bеen approximately 227 knots, or nautical miles, slightly longer than the regular mile.” The course from Tri-Cities to Hickory is 141 degrees. “The status of the winds in that area at that altitude was 280 degrees at about 40 miles per hour.” The ground speed would, therefore, be something in excess of four miles per minute. The co-pilot fixed the place of injury as “in the vicinity of Lenoir. . . . This would be, roughly speaking, 18 or 20 miles from the ridges we had passed.” Such position would be fourteеn miles west of Hickory, slightly more than three minutes flying time, yet the flight attendant says that it was eight to ten minutes after the injury before arrival at Hickory. He also fixes the time elapsing between the giving of the warning signal until the injury as “at least five minutes.” Aсcepting, as the jury could, five minutes as the period of time elapsing between the turning on of the lights and the injury, the plane would travel about twenty miles from the turning on of the lights and the moment of fall; but the jury could draw the inference thаt twelve to sixteen miles of this distance was west of Grandfather. The downsweep of the air takes place after passing the mountain range. The jury could infer from the testimony that the plane had only passed Grandfathеr some four miles when the downdraft which caused plaintiff's injury was encountered. If, in such close proximity, would not an unusually prudent man have expected the exact air turbulence or downdraft which the plane encountеred? The original answer responds in the affirmative and asserts the light was on because in an area where turbulence could be expected.
Because there was evidence on which the jury could find both facts nеcessary to establish defendant’s negligence, the court properly overruled the motion to nonsuit.
Plaintiff offered medical testimony in support of his assertion that he sustained serious and permanent injuries. Defendant сalled as one of its witnesses Dr. Coffey, who had treated plaintiff. Dr. Coffey had not been called or examined by plaintiff as a witness. On plaintiff’s objection, the court excluded his testimony. Dr. Coffey, by stipulation of plaintiff, is an expert neurological physician. He was requested to examine plaintiff by Dr. Wrenn, a medical expert specializing in the field of orthopedic surgery. Dr. Wrenn treated plaintiff for the injuries sustained. He testified as an expert on plaintiff’s behalf. Dr.
*703
Coffey testified without objection that he examined plaintiff on 25 February 1959. He was then asked: “Q. Doctor, what was the result of that examination?” Defendant objected. The objection was sustained. Counsel fоr plaintiff stated that his objection was “on the ground that the examination of the plaintiff by Dr. Coffey constituted a communication between physician and patient, and information obtained therefrom by Dr. Coffey was privilegеd.” The record discloses: “The Court stated that in his opinion the evidence was privileged and that the Court would not permit Dr. Coffey to testify as to his examination of the plaintiff, or as to information obtained therefrom.” Our statute (G.S. 8-53) declares communications between surgeons and patients privileged and in general protects the surgeon from being compelled to disclose information obtained from his patient in order to furnish proper treatment, but the statute contains a provision “that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice.” Counsel for dеfendant insists that the evidence excluded was competent, relying on
Capps v. Lynch,
If it appeared that the court excluded the testimony of Dr. Coffey because he was compelled by statute to do so, we would direct a new trial; but the record, we think, clearly negatives any idea that the ruling was based on want of authority. The use of the word “permit” implies a discretion and a refusal because the court did not deem the еvidence necessary to a proper administration of justice.
When no reason is assigned by the court for a ruling which may be made as a matter of discretion for the promotion of justice or because of а mistaken view of the law, the presumption on appeal is that the court made the ruling in the exercise of its discretion.
Phelps v. McCotter,
We have carefully reviewed the other assignments of error but find nothing that we deem prejudicial or requiring discussion. Hence we reach the conclusion there is
No error.