Ross v. Atlantic Greyhound Corp.
25 S.E.2d 852
N.C.
1943
Check Treatment
DbNNY, J.

Tbe defendant assigns as error tbe refusal of bis Honor to grant its motion for judgment as of nonsuit lodged at tbe close of plaintiff’s evidence and renewed at tbe close of all tbe evidence.

On a motion to nonsuit, tbe evidence is to be taken in tbe light most favorable to tbe plaintiff, and be is entitled to tbe benefit of every reasonable inference to be drawn therefrom. C. S. 567. Wingler v. Miller, ante, 15; Edwards v. Junior Order, 220 N. C., 41, 16 S. E. (2d), 466; Coltram v. R. R., 216 N. C., 263, 4 S. E. (2d), 852; Lincoln v. R. R., 207 N. C., 787, 178 S. E. (2d), 601; Dickerson v. Reynolds, 205 N. C., 770, 172 S. E., 402; Cromwell v. Logan, 196 N. C., 588, 146 S. E., 233; Brown v. R. R., 195 N. C., 699, 143 S. E., 536; Robinson v. Ivey, 193 N. C., 805, 138 S. E., 173. However, tbe defendant seriously contends that under tbe law, as laid down in White v. Chappell, 219 N. C., 652, 14 S. E. (2d), 843, tbe responsibility of tbe defendant extended only to “a safe landing” or “a landing in safety,” and since there is evidence to tbe effect that plaintiff’s injury occurred from two to ten minutes after tbe bus stopped and tbe plaintiff alighted therefrom, that defendant bad discharged its duty to plaintiff, and is entitled to judgment as of nonsuit. Tbe law applicable to tbe facts in White v. Chappell, supra, does not apply to tbe facts in tbe instant case. There the relationship of carrier and passenger bad terminated prior to tbe time of tbe injury, here that relationship bad -not terminated but still existed at tbe time of plaintiff’s injury. When tbe plaintiff’s evidence on this record is considered in a light most favorable to him, we think it is sufficient to be submitted to tbe jury, and that bis Honor was correct in overruling defendant’s motion for judgment as of nonsuit. It will be noted that one of plaintiff’s witnesses testified: “Tbe bus stopped just right on tbe left side of tbe road. . . . Tbe bus was right against tbe curb. . . . They just stepped out and tbe car bit them. Yes, they were tbe boys that were bit by Clyde Xirby. . . . They bad just stepped out when they got bit and were right close to tbe bus. When they were struck they were in tbe highway.”

Tbe defendant also excepted to, and assigned as error, that portion of bis Honor’s charge as follows: “Thus, where a horse is left unhitched in tbe street and unattended, and is maliciously frightened by a stranger and runs away, but for tbe intervening act would not have run away and injury would not have occurred, yet it was tbe negligence of tbe driver in tbe first instance which made tbe runaway possible, that is, leaving the horse unattended and untied. Now, this negligence-has not *243 been superseded or obliterated and tbe driver is responsible for tbe resulting injuries, if sneb should be found by tbe greater weight of tbe evidence.” Tbe defendant contends this is an instruction of law on facts not applicable to this case. We think tbe exception well taken,, although tbe language to which tbe exception is addressed is a quotation from tbe case of Balcum v. Johnson, 177 N. C., 213, 98 S. E., 532; S. v. McFalls, 221 N. C., 22, 18 S. E. (2d), 700; Light Co. v. Moss, 220 N. C., 200, 17 S. E. (2d), 10. The facts used in tbe illustration are not similar to tbe facts in this case. Tbe horse is animate and has tbe power to move of its own volition without tbe interference or wrongful act of anyone. A motor vehicle is inanimate and cannot move of its own volition. Furthermore, tbe plaintiff’s injury did not result from tbe movement of defendant’s bus, either maliciously or otherwise. Moreover, where a motor vehicle is parked properly, tbe brakes set and tbe engine turned off, tbe owner thereof is not responsible for tbe independent act of a third party in negligently or maliciously starting tbe motor vehicle which results in damages or injuries to another. Maloney v. Kaplan, 233 N. Y., 426, 135 N. E., 838, 26 A. L. R., 909; In re Rhad v. Duquesne Light Co., 255 Pa., 409, L. R. A., 1917D, 864, 100 Atl., 262. See Annotations 26 A. L. R., 912, for numerous authorities in support of tbe above view. And in our own jurisdiction, in tbe case of Ward v. R. R., 206 N. C., 530, 174 S. E., 443, Brogden, J., speaking for the Court, said: “Assuming, but not deciding, that tbe defendant was negligent in not taking proper precaution . . . , nevertheless tbe general rule of law is that if between tbe negligence and tbe injury there is tbe intervening crime or wilful and malicious act of a third person producing tbe injury but that such was not intended by tbe defendant, and could not have been' reasonably foreseen by it “the causal chain between tbe original negligence and tbe accident is broken.’ Burt v. Advertising Co., 28 N. E., 1; Chancey v. R. R., 174 N. C., 351; Green v. Atlanta & C. A. L. Ry. Co., 148 S. E., 633; Green v. R. R., 279 U. S., 821, 73 L. Ed., 976; Davis v. Green, 260 U. S., 349; St. Louis R. R. Co. v. Mills, 271 U. S., 343, 70 L. Ed., 979; Strong v. Granite Furniture Co., 294 Pac., 303, 78 A. L. R., 465, and annotations.” Penny v. R. R. Co., 153 N. C., 296, 69 S. E., 238.

Tbe question here is whether or not tbe plaintiff was injured by tbe negligence of tbe defendant or by tbe negligence of tbe defendant concurring with tbe negligence of Clyde Kirby, tbe driver of tbe automobile which actually struck tbe plaintiff — the plaintiff being free from contributory negligence. Tbe jury, in tbe light of all tbe circumstances, must determine whether or not tbe defendant exercised that degree of care commensurate with its duty under its relationship to tbe plaintiff as carrier and passenger which existed at tbe time. Horton v. Coach *244 Co., 216 N. C., 567, 5 S. E. (2d), 828; Perry v. Sykes, 215 N. C., 39, 200 S. E., 923; Hollingsworth v. Skelding, 142 N. C., 246, 55 S. E., 212; Clark v. Traction Co., 138 N. C., 77, 50 S. E., 518; Lewis v. Pacific Greyhound Lines, Inc., 96 A. L. R., 718, 147 Ore., 588, 34 P. (2d), 616. If it did not so exercise that degree of care, then the jury likewise must determine whether or not the defendant is relieved of liability by the intervening negligence of Clyde Kirby, or by the contributory negligence of the plaintiff. These questions must be answered by the jury, in the light of 'all the evidence and the attending circumstances. The law relative to negligence, intervening negligence and contributory negligence, is too well settled to require a discussion thereof here. 22 R. C. L., Sec. 20, p. 136; Milwaukee R. R. Co. v. Kellogg, 94 U. S., 474, 24 U. S. (Law Ed.), 258; Montgomery v. Blades, 222 N. C., 463, 23 S. E. (2d), 844; Haney v. Lincolnlon, 207 N. C., 282, 176 S. E., 573; Baker v. R. R., 205 N. C., 329, 171 S. E., 342; Hinnant v. R. R., 202 N. C., 489, 163 S. E., 555; Herman v. R. R., 197 N. C., 718, 150 S. E., 36; Harton v. Tel. Co., 141 N. C., 455, 54 S. E., 299.

The other assignments of error need not he discussed, since the questions presented may not arise on a new trial. We think the defendant, for the reasons given, is entitled to a new trial, and it is so ordered.

New trial.