*1 188 THE SUPREME IN COURT. Lewis. v. HAR
R. FRAZIER PEMBERTON PEMBERTON and MRS. MARGUERITE Trading RELSON, PEMBERTON, LEWIS, L. S. v. J. W. Guardians HOME, as LEWIS and RICHARD GORDON. FUNERAL (Filed March, 1952.) —(3) 1. Carriers 21a § person passengers transporting A in is a contract hire an ambulance passengers duty (1) carrier and care to owes his to exercise (2) provide reasonably carriage passengers, vehicle safe for subject nonapparent dangers inspection, (3) passengers of his vehicle reasonable to warn his vehicle, including latent involved in the use of his notice, (4) operate vehicle defects of which he has constructive statutory prudent compliance in a rules of careful and manner the road. — Negligence § 3% 2. Carriers 21b: § ipsa loquitur apply injury in an Res does not to the resulting opening ambulance is motion when the reasons from the sudden of the door while the point passenger’s out evidence itself undertakes why suddenly opened. the door non- that defect in or 3. 21b —Evidence held insufficient to show Carriers § proximate locking acci- cause of use of additional automatic device was opening resulting dent from sudden of ambulance door. assigned accompanying patient in an and was Plaintiff was backward, adjacent compartment, facing a rear seat the rear safety compartment compartment locking which this door. automatic device opened from either door was locked so that it could be closed, was defective or outside when the driver’s door inside regular question, conven- but the door had the not tional mobiles, use the occasion ordinarily used on auto- of the kind lock latch mechanism When mechanism. was no defect there evidence handle, against plaintiff seated, right hip or near the door position, and the door could door handle was in a vertical but the upward, only by turning opened handle forward lower end of the jar open from or vibration the door would and there was no evidence that pressure that while The evidence tended to show or from it. highway speed along rapid at a rate of ambulance was the door driven injury. suddenly open, Selcl: fell to came intentionally opened by plaintiff whether the the door was Whether movement bottom push plaintiff’s caused vehicle could have upward, speculation forward and left end of the door handle and, therefore, conjecture insufficient to show that the evidence is and accident was the probable consequence condi- of the defective natural and appliance, have been should lock and nonsuit tion of the automatic entered. Ervin, J., dissenting. J., Mo.ore, Term, 1951, Guilfoed. June
Appeal defendants Reversed. injuries. damages personal ex clelicto to recover action
Civil TEEM, N. SEEING 0.]
Pemberton v. *2 Defendant a operates funeral borne. In connection therewith be a maintains combination and hearse ambulance. On the occasion of plaintiff’s injuries, defendant Gordon was the driver of the ambulance on plaintiff was For riding. convenience of discussion hereafter Lewis will be referred as the and Gordon defendant as the driver. was a 1947 Miller Cadillac body having two compart-
ments —one front for at the the and his and any, driver if companion, one at the the patient back for or as the case be. There corpse, might are two doors on right the and compartment side—one the driver’s one to the patient in compartment. Hereafter, referring doors, to the refer- right ence is had to side door patient as compartment patient door and the compartment one to the front side right-hand as driver’s door. patient Inside the was a compartment patient cot and two small his or when not companion. seats nurse These seats, in folded a floor. use, into became The forward seat'—(cid:127) part opened door, to the patient compartment one here next involved— facing to so it would his rear, anyone occupying body up have against door door handle and back hip against with his toward the is the assigned plaintiff front of ambulance. This seat when left Tabor and is as the City, the ambulance hereafter referred to passenger seat. is con- patient compartment
There are two locks door. One ventional door lock found all motor passenger latch Cadillac door is in closed part, keep vehicles. mechanism provided, while the in motion. lock is a dowel special pin vehicle is The other A lock disconnected from conventional lock. dowel safety wholly from through metal frame the rear framework pin body extends door patient compartment driver’s door to the front framework closed, spring and is so when the driver’s equipped with it so compartment locking a slot in the pin pushed patient door, the inside. that it from the outside may opened not either for- pin When door is the metal opened, spring pushes driver’s Plain- door. ward, unlocking compartment thus releasing patient in a tiff lock was state alleges special that this dowel defective pin bad and defendant admits in answer repair day question, that it on that day. was not in use
On son, 1949 defendant transport plaintiff’s October contracted to invalid, Eoanoke, from Tabor Va. City Hospital to the Veterans’ Under He was did, the contract his son. plaintiff to, accompany that when assigned front seat so passenger patient he was door and his up against hip seated his or near door handle is in a vertical under position handle. This the arm downward, rest. Its arm extends it is attached to handle IN THE SUPREME COURT.
Pemberton v. under and arm To tbe immediately gap open tbe rest. tbe door, tbis must be forward toward tbe front tbe vehicle pulled handle In as chair to him. assigned toward be was seated in tbe reach body, order to tbe tbe would to move bis door, ambulance. under tbe arm latch toward tbe tbe rest, pull tbe front driver tbe question, patient compartment On tbe tbe closed day in motion. tbe vehicle putting before witness, installed is clear. One pin
Just when tbe dowel lock was I tbe it was when “just put testified that it was same as mechanic, had on it. Another testified that put there” that a been except part new latch was use safety general or automatic band-operated either hour on a high- 55 miles per at about proceeding While tbe vehicle *3 fell out. Plain- opened plaintiff tbe door way County, Guilford a moment. It appeared “I saw it for only tiff’s testified: only eyewitness of 300 a distance about dragged fast.” Plaintiff was running to be very ambulance continued ambulance. Tbe contact with tbe losing feet before plaintiff driver aware for 300 Just when tbe became on another feet. is not disclosed. bad from tbe ambulance fallen of crest tbe ambulance tbe opened, passed tbe over Shortly before or repaired place trial, patch a bill. At tbe of tbe there time 126 is about place Tbis patched about thirteen feet wide. tbe pavement it is bill; is, of of tbe near side tbe crest tbe beyond feet from tbe fell plaintiff bill and where place crest of tbe between tbe know whether it that she did not witness testified ambulance. Tbe was. no that it or not. evidence of tbe accident day there tbe There is of tbe door was closed. bill, tbe crest tbe ambulance over passed When tbe out, looked noise, loud a witness beard rather thereafter, Shortly tbe noise Whether along highway. tbe being dragged plaintiff saw is not made other cause of some opening tbe tbe produced by to appear. tbe object passenger of inside any absence no evidence as tbe There is Nor is himself. bold to balance could to which was in opened door bad ever tbe tbe there evidence
motion. injuries. physical and permanent Plaintiff suffered serious of plain- of close nonsuit judgment motion for defendants’ Tbe issues Appropriate excepted. and defendants evidence overruled tiff’s From of plaintiff. favor and were answered tbe jury submitted to were appealed. verdict defendants judgment tbe appellees. <&Frazier plaintiff Frazier Thompson D. Walter for appel- Smith, Moore & Smith Sapp, Mallard and B. B. defendant for lants. TERM, N. SPRING 191 0.] v. Lewis. J. On this record private defendant was a or contract car- BaeNHill, passengers rier hire. As such he the plaintiff owed duty ordinary exercise care to transport his passengers safely. general duty required him (1) exercise a motor supply care vehicle safe reasonably carriage passengers, (2) subject reasonable inspection, warn his (3) passengers involved in use of nonapparent dangers latent vehicle, including vehicle, defects which he had actual notice, and (4) constructive his motor vehicle in a operate careful manner and in prudent compliance statutory rules of the road. 13 1262, C. J.S. 678 9 A.J. (d) ; 435, (see notes) ; sec. sec. 10 cases cited A.L.I., 392; Torts A.L.R. 2d 916. sec.
Did defendants breach these duties which owed they plaintiff question as a result which suffered the day personal injuries disclosed the record? This question posed by decisive this A appeal. majority court is answer in negative. constrained to The oft-repeated controlling rules the consideration of an assignment denial error directed to the of motion to as in dismiss action case It no nonsuit have axiomatic. would become serve useful purpose them It we repeat say here. them mind. suffices may observe, We offered no however, testimony, that defendants rule defining therefore the the extent to which defend- ant on a motion for an may involuntary considered nonsuit has no application here. evidence in case does not res application ipsa invoke the *4 We discuss
loquitur doctrine. need not that contention of fur plaintiff than ther to himself to say plaintiff point that undertakes out at least two door to why suddenly reasons the ambulance Hence opened. 222 Etheridge 616, v. 24 2d Etheridge, 477, S.E. and the other like N.C. cited him are Mulhearn by clearly distinguishable. Rushing cases v. Home, Funeral 200 So. plaintiff offered to or testimony tending special show that extra in
dowel lock a pin repair, was state bad and defendants admit it was on injured. not in use day plaintiff Was condition its defective or nonuse ? proximate alleged as mishap by plaintiff cause assertion,
Plaintiff upon relies which contends is a reasonable he that or nonuse of conclusion, in, pin the defect the dowel lock would cause patient door open the event suddenly heavy non on door. is a door- pressure sequitur. The conventional held locking mechanism door closed. The automatic appliance locked from opened it so that it could not driver’s seat anyone be patient compartment. IN THE SUPREME COURT. v. Lewis. latch, on its automobile bas a
Every regular lock mechanism doors. while keep This mechanism is door closed provided, part, the automobile is in motion. In addition in connection provided there lock may door lock a button” which be “push each device used the door from the inside.
Such was the case on used defendant time It had on plaintiff injuries. patient compartment received his door a lock such as is conventional door and latch mechanism regular all provided may found on Cadillac automobiles. be a record to show that particle tending There is not evidence this mechanism found all Cadillac automobiles conventional other or in a of bad all repair. Instead, defective state was not but served relating adequately thereto show it defective tends a for which it was intended. And it is matter common purpose a it is keeps that mechanism that closed knowledge Locking motor is in motion. serve another purpose. devices on a you’d “The on that door the same as exactly catches are They or most Motors automobile. have two catches any Cadillac General latch is a the latch catch and groove them. There catch also . . . is no other safety catch catch on it too. There safety has device all auto- any than Cadillac door latch. That’s regular conventional the door un- . . Jar or vibration will not cause to come mobile has. . I’ll say it would automobile. regular latched more so than any jar as there flying open there much chance as . . .” else’s automobile my anybody would car car your mechanism, no lock and latch there was defect the conventional Since held defect in the mechanism which danger by any there was created no brought of which had motion, notice been closed while was Anno. warned plaintiff. and of he should have home to defendant tending 916. Nor evidence show 21 A.L.R. 2d is there v. Rushing it. weight against someone leaned his door would when Evans, Home, 2d 350. Everett v. S.W. supra; Mulhearn Funeral voluntarily plaintiff as then, just So it is reasonable surmise butt waste or other cigar cigarette door and threw out opened the suddenly thrown plaintiff material as it is to “infer” that rests on specu- Either causing pure conclusion door, fly open. Evans, lation. v. supra. Everett highway; place further insists there patched *5 a of speed over at rate place high when this passed the to or threw caused door jolt jar open
it caused a which either the it to This open. position with force as cause it such plaintiff against the for the there is no evidence in the first reason untenable, place, is if In of the second day place, existed on the accident. the patched place TERM, SPRING N. 0.]
Pembekton v. we exist, tending concede that it did then there is no to show evidence that was either elevated above or below the surface of the depressed road so to disturb of a motor over passing as the even tenor it. the
Lastly, the the him was plaintiff urges view seat furnished small so that a man of his size had his arranged hip seated pressed door and door manner against the the handle the of of jarring swaying operated high the ambulance when at rate would speed cause slide the handle thus hip slip against his open door. would be position quite plausible might support the an inference of if door could be the negligence opened by pressing the handle toward the of such is the rear the ambulance. But case. Plaintiff was his seat, facing seated with back to the driver’s the rear. If a him jar seat, hip sudden caused down would slip press door regular lock handle. But on record that would only this turning simple tend to brace handle and it from keep —this reason the had to be forward toward in order to pulled handle open door. (the seat)
“It beside arm rest the door. latch right (door handle) inside the door is and when sit in perpendicular you that seat latch strikes ... In you approximately your hip. order move that latch to move reach under and you your body, pull the latch toward the front of ambulance. ... In order to reach this handle would under arm And you have to reach rest.” another witness up to the same effect. latch is as shown perpendicular testified “The . In order to latch must be forward. . . picture. open pulled The bottom latch moves toward the front the ambulance.” part reasons ad- very multiplicity possible why opened, by plaintiff, merely emphasize speculative vanced serves to nature the infer- support There is no record testimony. evidence probable consequence ence that accident was natural Just door-locking appliance. why of the automatic defective condition regular fact was no defect light it did there open, mechanism, speculation. a matter lock latch plaintiff alleges proves In comes to this: effect ease accident— in a in use at time locking defect device—not special below on that the theory and was to recover in the court permitted notwith- hazard, this device created in, of, special defect nonuse that the door the conventional equipped standing doors closed keep and latch which all motorists upon rely lock and that mechanism was motion, good are in their vehicles had it.” order so that to use the handle working “you life. Plaintiff suffered tragedies The record one presents his mind and from which he will not recover. injuries which affect grave 7 —235
194 IN THE SUPREME COURT.
PEMBERTON LEWIS. V. Yet this does not warrant a judgment against the defendant these unless are injuries proximate result of his As read negligence. we record, there is no that would evidence warrant conclusion. this
For the reasons stated the judgment below must Reversed.
ERVIN,J., dissenting: According my interpretation the case appeal, the is plaintiffs support sufficient conclusion evidence pitiful ward, Pemberton, that the S. is the natural and plight W. probable the virtual refusal of the defendants to consequence keep of a proper repair simple safety appliance type general approved In join holding use ambulances. I in the decision consequence, cannot that in no view of the can the defendants be deemed guilty actionable reasons which are set negligence. prompt my The dissent forth below. decisions how the court determines whether the evi- explaining a motion for nonsuit compulsory
dence sufficient withstand are well-nigh case no as numerous where the defendant offers evidence in Vallombrosa.” Accord- as the “autumnal leaves that strow the brooks must do decisions, things performing to these court these ing judicial task: plaintiff’s
1.
must take it for
that the
evidence
granted
court
every
the benefit
favorable
true,
give
inference
Co.,
v.
231 N.C.
58 S.E.
680,
his evidence
Graham Gas
fairly supports.
661;
231 N.C.
56 S.E. 2d
v.
Jaffa,
242,
Hughes
2d
v.
757; Higdon
Lines, 223 390, 2d Bank v. N.C. 793; 229 49 S.E. Ins. 382, N.C. Order, 16 2d 41, 466; 220 N.C. S.E. 26 S.E. 2d Edwards Junior 862; v. R., Wood, R. N.C. 336; 208 181 Lincoln v. 207 414, Dozier v. N.C. S.E. 601. 787, 178 S.E. if it appears the motion to nonsuit deny
3. The court must
view of
facts which the
had
plaintiff upon
can be
recovery
v.
to establish. Graham
reasonably
interpreted
as thus
tends
evidence
Hinshaw,
Co.,
358;
40
2d
Gorham
226 N.C.
S.E.
700,
Cox
supra;
Gas
v.
Stores,
Co.,
200
Diamond v. Service
5;
214
S.E.
526,
Insurance
N.C.
v.
632,
(2) Holder to the ward. injury plaintiff’s cause failure was the proximate *7 Miller, Co., 904; 2d Hammett v. 232 61 623, v. N.C. S.E. Trucking field Railroad, 24 222 N.C. S.E. 704, Truelove 10, 480; N.C. 40 S.E. 2d v. 227 Co., Kiker, 548; Refining 5 2d Ellis 511, 2d v. 216 N.C. S.E. v. 537; Gold 388, 214 N.C. 199 S.E. satisfied plaintiffs
A consideration of whether the question some statement their law in this necessitates respect requirement to call the plaintiffs’ of narration evidence. It conduces to convenience and Richard J. L. Lewis defendants, S. and the Pemberton, W. ward, surnames. Gordon, their by respective to show the evidence first which arises is whether suffices inquiry negligence, of actionable first element essential existence to Pember- legal duty protect defendants were under That the
namely: summarized inquiry relevant to this ton against injury. paragraph. next a combina- Carolina, at Tabor North owned Lewis, City, mortician used on occasions to special and which he hearse, tion motor ambulance place them from one to ministering to persons transport patients vehicle, which is for Gordon to drive employed another hire. Lewis Lewis October, 1949, as an ambulance. On 27 designated hereinafter obligated whereby contract Lewis express Pemberton entered into sick son Pemberton’s transport to have Gordon Pemberton himself where Pember- Roanoke, Virginia, Tabor to City ambulance from bound whereby in a Pemberton hospital, placed ton’s son was he for such transportation. stipulated compensation Lewis a pay himself to occurred litigation present rise to the giving event tragic contract. out this carrying Gordon was It to the first inquiry. answer an affirmative compels This evidence i.e., hire, one, for of passengers was a carrier private that Lewis discloses public employment, as a in such business being engaged
who, without in a particular transport persons special contract by way undertakes and Practice, Law Cyclopedia hire. Blashfield’s for case xYutom.obile 531. It also shows section 2141.5; C.J.S., Carriers, 13 2141, sections carrier private the relation pleadings named at the time and Gordon was em- Pemberton, between existed Pemberton which Lewis owed obligations perform Lewis to ployed relationship. of that virtue hire legal duty is under the A of passengers carrier private and is liable passengers safely, his transport care ordinary exercise from his resulting negligence injuries proximately for personal to them Reinman, 112 166 417, Forbes v. Ark. care. to exercise such failing Co., 99 Conn. Bishop v. J. W. 1164; Duffy (N.S.) 51 563, S.W. L.R.A. 196 IN THE SUPEEME COUET. v. 122
573,
Banas,
121;
A.
Lazor v.
existence the second essential : negligence, element actionable to wit That the defendants failed to Pember- perform legal duty protect ton against The injury. query answer is to be found the testi- on mony bearing relating character of vehicle as well as in that conduct defendants. a conveyance The was “1947 Miller Cadillac” ambulance. Trans- or parent compart- slide windows divided the ambulance two bars ments : a front and a rear one, sat; one, patient where driver where the half of the rear was compartment his attendant rode. left-hand half was patient right-hand equipped fitted with cot a front which faced attendant, being seat, two for the one them seats a rear forwards. The seat, and the other faced backwards, ambulance had five two on each side one at the back. two doors, compartment, side doors afforded access to front driver’s foremost furnished to the rear or com- patient’s and the other three doors entrance compartment, side door to front which is here- partment. right front, was at its and the side door, hinged right after called driver’s as the designated door to the which is hereafter compartment, rear at its rear. compartment door, hinged patient’s on the market manufacturer and put When the ambulance its with two mechanisms to Lewis, equipped it was secure purchased by door door was closed. One them was when patient’s compartment on ordi- door-catch latch similar common use a conventional was an automobiles, the other automatic nary passenger-carrying which was of a use door-locking type general approved appliance, driver to designed prevent and which was to enable the ambulances, upon N. TERM, SPRING- O.] V.
PEMBERTON LEWIS. patient's compartment from opening was in t¡he motion. When this automatic door-locking appliance operating condition, locked automatically patient’s compartment when- ever driver’s door was closed so that the patient’s could not be either accidentally intentionally opened either inside or the outside while the driver’s remained closed.
Although the majority opinion does not so expressly it does inti- state, mate that the patient’s compartment door also with a equipped third door-closing mechanism, namely, “push button similar to that device” on use ordinary passenger-carrying motor vehicles. According my on reading appeal, this intimation ease cannot reconciled with the testimony of Harry Mashburn, on only queried witness the matter. He stated that the ambulance did “not ma- have that catch it.” The jority opinion the automatic dowel door-locking appliance pin calls “the lock” and makes this observation: “Just when the lock was pin dowel installed is not clear.” According to my interpretation the case appeal, this statement is based a misconstruction of testimony A. J. Inman, mechanic near who residing Tabor City, briefly quoted When majority opinion. Inman’s evidence is read aright its entirety, it shows that he made on the repairs subsequent injury, Pemberton’s that he was door- talking about new automatic locking appliance Besides, which he the vehicle at time. put statement is wholly inconsistent with the of Y. C. Ward Harry Mashburn. Ward stated that he was employed prior Lewis January, 1949; that the ambu- question; drove the ambulance in he was equipped “they lance with the automatic when door-locking appliance got it”; appliance first that the soon fell into and that it was disrepair; not in he operating employ approxi- condition when left the *9 ten was a mately months before accident. testified that he Mashburn salesman for the A. J. Miller which sold Cadillac Company, body Miller ambulances; that automatic door-locking were appliances put ambulances by manufacturer; that similar door-locking appli- “either automatic or hand ances, operated,” had been in general approved use ever ambulances since vehicle in was question made. The front seat in rear compartment, which is hereafter called the passenger seat in deference to nomenclature of the majority opinion, adjacent was patient’s door- compartment door. The conventional catch or latch door when securing closed was controlled or operated on the inside aby perpendicular inside door-handle made of metal. This hinged door-handle was top its to the inside of just below arm-rest, which was attached to inside of at a point “approxi- ten mately inches above level the (passenger) seat.” poten- tial movement of the inside door-handle was limited. It would turn one THE IN SUPREME COURT. v. Lewis. i.e.,
way only, toward the front of upwards the ambulance for a space not exceeding quarter a circle. Whenever the inside door-handle was by turned any whether force, accidentally intentionally applied, any i.e., appreciable extent in the in only move, direction which it could up- and forward wards, in an arc, disengaged conventional door-catch or latch securing the door. For this patient’s compartment reason, such movement the inside door-handle would cause door in question if the driver’s door was not closed or if the door-locking automatic appliance was not in operating patient’s condition. Inasmuch as com- partment door was hinged rear, at its certain was speedy opening its insured generated the inevitable friction the forward movement in case the conventional door-catch latch dis- became engaged door-locking while vehicle was in motion and the automatic in condition. appliance operating passenger seat was small area and hard composition. When the attendant to a ministering patient seat, rode in this he necessarily traveled backwards with left and knee under and thigh virtually his lower and door-handle moveable end the inside which con- trolled the conventional or latch securing patient’s door-catch com- partment elbow, door. left forearm and hand were in constant His of forcible contact with he danger door-handle, regardless whether placed them on the arm rest or elsewhere. There was no substantial object within his reach which he could about grasp keep sliding on the force occasioned seat, steady body against any external by the movement of ambulance. door-locking appliance disrepair automatic fell ceased to nor
operate January, at least as Neither Lewis Gordon early as made operating effort to restore it to condition.
When Pemberton himself and his son to Gordon at Tabor presented Roanoke, City 1949, transportation Yirginia, pur- October, suant Pemberton’s who Lewis, put son, to his contract with Gordon in a compartment comatose cot the rear of the ambu- state, upon the Pemberton to seat in such lance, permitted occupy to his unconscious son purpose ministering while door of the vehicle was en route to Roanoke. Gordon closed the nor motion. Neither put ambulance before he door-locking Gordon warned Pemberton that the automatic appliance the door disrepair, consequence danger there his seat would be ambulance was in motion opened beside the lower movable end pressure any part case direction in only *10 of door-handle caused the door-handle turn the i.e., in an arc, any and forward to move, upward appre- which it could of automatic door- Inasmuch as the defective state the ciable extent. TEEM, SPEING N. O.]
Pemberton v. to a the result- locking appliance passenger, was not visible defect tbe ant danger were not observation. ordinary in along highway
While the ambulance was fast” “running very Carolina, Guilford the County, occupied North the beside seat ambulance, Pemberton from the suddenly Pemberton fell opened, him for 300 and thereafter con- which feet dragged along highway brought tinued on its for an additional 300 feet Gordon way before door and his to a of the opening standstill. consequence As him mentally disabled fall, injuries, resultant Pemberton suffered of the appointment plaintiffs as well as and necessitated physically as his guardians. at the moment only precise witness ambulance see running to be appeared
accident Mrs. Eebecca who said “it Ward, in opinion fast.” The statement vehicle very majority hour time is on the at about miles based proceeding fifty-five per that he Lane, ques- evidence of State Patrolman who testified Highway “said he was tioned Gordon on of the accident and that Gordon day nothing miles an hour.” There is the record doing fifty-five about merit bestowed seeking praise that Gordon was indicate and changeth to his own hurt Psalmist “that sweareth upon person circum- patrolman not” at time he undertook to explain Inasmuch as injury passenger. stances critical surrounding the rear the entire view mirror afforded Gordon reflected view rear the point ambulance overshot at all the fact that the compartment times, to a standstill is brought feet opened by where the before far speed to warrant the conclusion that sufficient of Automobile Cyclopedia driver. Blashfield’s exceeded the its estimate Practice, Law and section 6560. experiments Inman that he made certain J. testified
A. that he below; court tried the action question while compartment the patient’s sat seat beside off” “was door-locking appliance when the automatic rear on the turned on”; door-catch or latch that he and the conventional “was door-handle; with the and knee into contact bring seat so as to elbow elbow or knee came and that whenever his opened up” “the with the door-handle. contact I conclu- diametrically opposite court and reach majority wholly hold that the evidence They
sions the case. phase breached the defendants any justify finding insufficient in view to legal duty one of four inherent specific obligations transport safely. exercise care to If I read it is based on majority opinion aright, portion paragraph Mashburn twelfth Harry quoted *11 IN THE SUPREME COURT. Pemberton v. Lewis. opinion additional considerations: (1) these That the ambulance with the conventional equipped door-catch latch found on all ordi- nary passenger-carrying automobiles; that such door- (2) conventional catch latch from defect; was free that “it is a (3) matter (i.e., common that knowledge it is this mechanism door- the conventional catch or latch) keeps the closed while a motor is in motion.”
When the additional considerations motivating the decision of the majority analyzed, they are come to this: The evidence compels single conclusion that the defendants fully performed legal duty exercise care to ordinary transport safely by Pemberton furnishing ambulance had no door-securing which device except whatever conventional door- catch or found on all ordinary latch automobiles. I passenger-carrying am how all the perceive testimony unable to in this drives cause A reasoning to this conclusion. in an faculty solitary passenger motor passenger-carrying vehicle sits on soft and com- comparatively modious faces to the seat, front, place by held the forward motion and is not in virtual contact with lower and conveyance, move- able end of door-handle. It is a far cry the inside the circumstances surrounding ordinary passenger-carrying automobile those which the defendants’ ambulance. This encircled finding the evidence admits that the conventional door- being true, to keep catch or latch was insufficient ambulance door closed wholly motion, though may vehicle was in even it have been sufficient of an it ordinary passenger-carrying to secure the door automobile while was in motion. concedes that majority opinion candidly plaintiffs’ testimony door-locking
tends to show that the automatic “was in a state appliance bad and that “the defendants admit use” repair” day injured. opinion Pemberton was dismisses they bearing this admission with the declaration that have no whatever breached their question legal obligation whether the defendants exercise care to motor vehicle safe for the supply reasonably reasonable declaration rests on the carriage majority Pemberton. The theory door-locking appliance designed that the automatic was not to keep door closed patient’s compartment moving, while the on the it served that, contrary, purpose.” majority but “another does not undertake to tell us what this other or to purpose was, explain the manufacturer failed to similar why put door-locking appliances rear compartment, happened the other two doors not to be adjacent either of the seats for attendants. While provided Harry Mashburn did testify “jar vibration will not cause door to come more unlocked so than it would regular automobile,” he N. SPRING TERM, 1952. O.]
Pemberton v. did not deny validity of the plaintiff’s theory ease. He said : “I did . never . . and see if I get could with my elbow or my knee.”
In my judgment, testimony reasonably the warrants this conclusion: The manufacturer of the ambulance the appreciated somewhat obvious fact that the conventional door-catch or latch was insufficient to secure the patient’s compartment door while occupied seat was by attendant, an and installed the automatic door-locking for appliance of precise purpose safeguarding an attendant riding that seat which befell very mishap Pemberton. Moreover, evidence fairly these supports inferences present phase case:
1. The automatic door-locking appliance defective, creating the danger that door adjacent to seat by occupied Pemberton would open in case movement of suddenly the ambulance caused his body to come into forcible contact with the lower and moveable end of the inside door handle.
2. The was known danger to Lewis had Gordon, existed such that time would known of it had they they subjected the ambulance inspection. to reasonable
3. was not to danger Pemberton, who apparent was justifiably of Neither nor ignorant it. Gordon gave Pemberton any warning of his peril. carry Gordon undertook to Pemberton his son along the high- at an
way unreasonable imprudent speed the ten- notwithstanding of such dency body to cause Pemberton’s speed to forcible con- come with tact lower moveable end of the inside door-handle. being true,
This suffices to establish that the defendants to failed to exercise care Pemberton transport safely. brings question me to the final whether evidence is sufficient of the third
to show existence element of essential actionable negli- That the failure of the to gence, namely: defendants exercise ordinary was the of transport safely proximate care cause injuries. adjudge majority my complete finality brethren of convic- must inquiry negative.
tion that this be answered opinion Their lays hold evidence that the door handle “had to inside pulled” be front of the open toward the the patient’s compartment door, logically and declares that impossible any external force occasioned the movement the ambulance cause Pemberton’s body I door-handle push grave that direction. entertain misgivings judicial that a tribunal as the thesis can observ- validity expect an illogical ance of the such precepts logic by thing as accidental THE COURT. IN SUPREME Pembekton v. It be with much of reason certainly argued external force. can show that mule, kick the nature which “don’t accord- partakes such force may, ought to no as it the evidence reveals facts ing rule.” Be this jury question as well as the the accident satisfy logician plaintiffs allege which the happened exactly way could have did happen. door handle “had to toward pulled”
The evidence that inside be door does patient’s compartment front of ambulance to pushed such door handle had be to- pulled directly imply precise vehicle. it could in that Indeed, front not move ward the i.e., way only, and moveable end traveled direction. Its lower one patient’s compart- in an arc. As consequence, and forward upward pressure which turned the lower opened by any ment door could-be Manifestly, forward. upward moveable door handle end or forward. moving upward a force either could caused pressure movement Pemberton’s majority The notion of the *13 of the various ignores of the rear ambulance in the direction necessarily instinctively pressed of them that Pemberton factors. One important of the counteract the the front ambulance to towards body his backward of vehicle him towards the propel of the forward-motion tendency of force occasioned the motion by external and another is rear, him backwards impel or upwards would bounce Pemberton ambulance origin direction upon sideways, depending forwards These instinctive reaction. with Pemberton’s and its interaction force motion of the ambu- occasioned so, by force things being external con- thigh elbow or knee or into forcible bring could Pemberton’s lance end door of inside handle lower and with the moveable tact and forwards, upwards end of the handle manner to turn such as open. door to causing the all arising leaves finally questions that the evidence brethren assert
My just as reasonable say it mystery. They shrouded case as is to voluntarily opened the door that Pemberton to “surmise” contact with the lower brought that his into forcible body “infer” ambulance, of the door handle movement of the and moveable end causing open. full was a mature man discloses that Pemberton ambu- moving all mental faculties he from of before fell
possession not reasonable either infer to surmise that certainly lance. It is as thing voluntarily man will do such an unreasonable to open reasonable of a motor while it is driven rearward-hinged along speed. highway high among does not entomb this case The evidence unsolved' law’s justifies riddles. assertion that Indeed, incontrovertible plain- N. SPRING TERM, 1952. 0.] Come, Shaw,
Watson Industries of Revenue. v. tiff’s ward could not possibly suffered disabling injuries bis had the defendants maintained the automatic door-locking appliance proper condition. Moreover, it warrants final these inferences on the third phase the case: The movement the ambulance brought Pemberton’s
forcible contact with lower moveable end of the inside handle, the door causing Pemberton to fall moving injury. to his
2. The mishap the natural probable consequence of the defec- tive condition the automatic door-locking appliance, neglect Lewis and to warn Gordon Pemberton of resultant danger, speed the ambulance.
For given, the reasons evidence of plaintiffs is sufficient to establish that was a private passengers hire; carrier he driver Gordon negligent they were in that failed to exercise their carry care and that their safely; negligence proximate injuries sole cause of the sustained Pemberton.
In I vote to consequence, judgment trial court. uphold INC., INDUSTRIES, SHAW, WATSON EUGENE G. v. Commissioner Revenue North Carolina. March, (Filed 1952.)
1. Statutes 5a— § Ordinary given natural, approved, words of a statute must be recognized meaning. *14 2. Taxation 30—§ parts for, purchaser Fabricated manufactured used building or construction of radio towers in State materials erection subject are 3%, taxpayer’s radio the excise tax of contention each single purchase upon tax was but which the to fifteen tower limited untenable, “Building” synony- G.S. 105-187. “structure” are dollars mous, meaning radio structure and a tower is a within the of the statute. 3. Same— practically parts singly for a are in combi- That structure worthless levy required nations than for the unit is immaterial sales less tax, price yardstick purchase is to be which the tax
measured. Law 31— Same: Constitutional § parts imposition of a sales or materials used in the erection tax State, towers, parts shipped though even are out of radio