Opinion
Filed 5 March, 1952.
1. Carriers 21a (3) — A person transporting passengers for hire in an ambulance is a contract carrier and owes his passengers the duty (1) to exercise ordinary care to provide a vehicle reasonably safe for the carriage of passengers, (2) to subject his vehicle to reasonable inspection, (3) to warn his passengers of nonapparent dangers involved in the use of his vehicle, including latent defects of which he has constructive notice, and (4) to operate the vehicle in a careful and prudent manner in compliance with statutory rules of the road.
2. Carriers 21b: Negligence 3 1/2 — Res ipsa loquitur does not apply to the injury of a passenger in an ambulance resulting from the sudden opening of the door while the vehicle is in motion when the passenger's evidence itself undertakes to point out reasons why the door suddenly opened.
3. Carriers 21b — Evidence held insufficient to show that defect in or nonuse of additional automatic locking device was proximate cause of accident resulting from sudden opening or ambulance door. Plaintiff was accompanying a patient in an ambulance and was assigned a seat in the rear compartment, facing backward, and adjacent to a rear compartment door. The automatic safety locking device by which this compartment door was locked so that it could not be opened either from the inside or outside when the driver's door was closed, was defective and not in use on the occasion in question, but the door had the regular conventional door lock and latch mechanism of the kind ordinarily used on automobiles, and there was no evidence of any defect in this mechanism. When plaintiff was seated, his right hip was against or near the door handle, but the door handle was in a vertical position, and the door could be opened only by turning the lower end of the handle forward and upward, and there was no evidence that the door would open from jar or vibration or from pressure against it. The evidence tended to show that while the ambulance was being driven at a rapid rate of speed along the highway the door suddenly came open, and plaintiff fell to his injury. Held: Whether the door was intentionally opened by plaintiff or whether the movement of the vehicle could have caused plaintiff's body to push the bottom end of the door handle forward and upward, is left in speculation and conjecture and, therefore, the evidence is insufficient to show that the accident was the natural and probable consequence of the defective condition of the automatic door lock appliance, and nonsuit should have been entered.
APPEAL by defendants from Moore, J., June Term, 1951, GUILFORD. Reversed.
Walter D. Thompson and Frazier Frazier for plaintiff appellees.
R. B. Mallard and Smith, Sapp, Moore Smith for defendant appellants.
ERVIN, J., dissenting.
Civil action ex delicto to recover damages for personal injuries.
Defendant Lewis operates a funeral home. In connection therewith he maintains a combination hearse and ambulance. On the occasion of plaintiff's injuries, defendant Gordon was the driver of the ambulance on which plaintiff was riding. For convenience of discussion hereafter Lewis will be referred to as the defendant and Gordon as the driver.
The ambulance was a 1947 Miller body Cadillac having two compartments — one at the front for the driver and his companion, if any, and one at the back for the patient or corpse, as the case might be. There are two doors on the right side — one to the driver's compartment and one to the patient compartment. Hereafter, in referring to the doors, reference is had to the right side door to the patient compartment as patient compartment door and the one to the front on the right-hand side as the driver's door. Inside the patient compartment was a cot for the patient and two small seats for his nurse or companion. These seats, when not in use, folded into and became a part of the floor. The forward seat — the one here involved — opened next to the patient compartment door, facing to the rear, so that anyone occupying it would have his body up against the door with his hip against the door handle and with his back toward the front of the ambulance. This is the seat assigned to plaintiff when the ambulance left Tabor City, and is hereafter referred to as the passenger seat.
There are two locks to the patient compartment door. One is the conventional door latch or lock found on all Cadillac passenger motor vehicles. This mechanism is provided, in part, to keep the door closed while the vehicle is in motion. The other lock is a special dowel pin safety lock wholly disconnected from the conventional lock. A dowel metal pin extends through the body frame from the rear framework of the driver's door to the front framework of the patient compartment door and is equipped with a spring so that when the driver's door is closed, the pin is pushed into a slot in the patient compartment door, locking it so that it may not be opened either from the outside or from the inside. When the driver's door is opened, the spring pushes the metal pin forward, thus releasing and unlocking the patient compartment door. Plaintiff alleges that this special dowel pin lock was defective and in a state of bad repair on the day in question, and defendant admits in his answer that it was not in use on that day.
On 27 October 1949 defendant contracted to transport plaintiff's son, an invalid, from Tabor City to the Veterans' Hospital at Roanoke, Va. Under the contract plaintiff was to, and did, accompany his son. He was assigned the front passenger seat in the patient compartment so that when he was seated his body was up against the door and his hip was against or near the door handle. This door handle is in a vertical position under the arm rest. Its arm or handle extends downward, and it is attached to the door immediately under and in a gap in the arm rest. To open the door, this handle must be pulled forward toward the front of the vehicle and toward plaintiff as he was seated in the chair assigned to him. In order to open the door, the passenger would have to move his body, reach under the arm rest, and pull the latch toward the front of the ambulance. On the day in question, the driver closed the patient compartment door before putting the vehicle in motion.
Just when the dowel pin lock was installed is not clear. One witness, a mechanic, testified that it was "just the same as it was when I put it on there" except that a new part had been put on it. Another testified that either a hand-operated or automatic safety latch was in general use in
While the vehicle was proceeding at about 55 miles per hour on a highway in Guilford County, the door opened and plaintiff fell out. Plaintiff's only eyewitness testified: "I saw it for only a moment. It appeared to be running very fast." Plaintiff was dragged a distance of about 300 feet before losing contact with the ambulance. The ambulance continued on for another 300 feet. Just when the driver became aware plaintiff had fallen from the ambulance is not disclosed.
Shortly before the door opened, the ambulance passed over the crest of a hill. At the time of the trial, there was a patch or repaired place in the pavement about thirteen feet wide. This patched place is about 126 feet beyond and on the near side of the crest of the hill; that is, it is between the crest of the hill and the place where plaintiff fell from the ambulance. The witness testified that she did not know whether it was there on the day of the accident or not. There is no evidence that it was. When the ambulance passed over the crest of the hill, the door was closed. Shortly thereafter, a witness heard a rather loud noise, looked out, and saw plaintiff being dragged along the highway. Whether the noise was produced by the opening of the door or by some other cause is not made to appear.
There is no evidence as to the absence of any object inside the passenger compartment to which a passenger could hold to balance himself. Nor is there any evidence the door had ever opened while the ambulance was in motion.
Plaintiff suffered serious and permanent physical injuries.
The defendants' motion for judgment of nonsuit at the close of plaintiff's evidence was overruled and defendants excepted. Appropriate issues were submitted to the jury and were answered in favor of plaintiff. From judgment on the verdict defendants appealed.
On this record defendant was a private or contract carrier of passengers for hire.
As such he owed the plaintiff the duty to exercise ordinary care to transport his passengers safely. This general duty required him to (1) exercise ordinary care to supply a motor vehicle reasonably safe for the carriage of passengers, (2) subject his vehicle to reasonable inspection (3) warn his passengers of nonapparent dangers involved in the use of his vehicle, including latent defects in the vehicle, of which he had actual or constructive notice, and (4) operate his motor vehicle in a careful and prudent manner and in compliance with the statutory rules of the road. 13 C.J.S. 1262, sec. 678 (d); 9 A.J. 435, sec. 10 (see cases cited in notes); 2 Torts A.L.I., sec. 392; 21 A.L.R.2d 916.
Did defendants breach these duties which they owed the plaintiff on the day in question as a result of which plaintiff suffered the personal injuries disclosed by the record? This is the decisive question posed by this appeal. A majority of the court is constrained to answer in the negative.
The oft-repeated rules controlling the consideration of an assignment of error directed to the denial of a motion to dismiss an action as in case of nonsuit have become axiomatic. It would serve no useful purpose to repeat them here. It suffices to say we have them in mind.
We may observe, however, that defendants offered no testimony, and therefore the rule defining the extent to which the testimony of the defendant may be considered on a motion for an involuntary nonsuit has no application here.
The evidence in this case does not invoke the application of the res ipsa loquitur doctrine. We need not discuss that contention of plaintiff further than to say that plaintiff himself undertakes to point out at least two reasons why the door to the ambulance suddenly opened. Hence Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477, and the other like cases cited by him are clearly distinguishable. Rushing v. Mulhearn Funeral Home, 200 So. 52.
The plaintiff offered testimony tending to show that the extra or special dowel pin lock was in a state of bad repair, and defendants admit it was not in use on the day plaintiff was injured. Was its defective condition or nonuse the proximate cause of the mishap as alleged by plaintiff?
Plaintiff relies upon the assertion, which he contends is a reasonable conclusion, that the defect in, or nonuse of the dowel pin lock would cause the patient compartment door to open suddenly in the event of heavy pressure on the door. This is a non sequitur. The conventional door-locking mechanism held the door closed. The automatic appliance locked it from the driver's seat so that it could not be opened by anyone in the patient compartment.
Every automobile has a regular door lock and latch mechanism on its doors. This mechanism is provided, in part, to keep the door closed while the automobile is in motion. In addition there is provided in connection with each door lock a "push button" device which may be used to lock the door from the inside.
Such was the case on the ambulance being used by defendant at the time plaintiff received his injuries. It had on the patient compartment door a regular conventional door lock and latch mechanism such as is provided for and may be found on all Cadillac automobiles.
There is not a particle of evidence in the record tending to show that this conventional mechanism found on all Cadillac and other automobiles was defective or in a state of bad repair. Instead, all the testimony relating thereto tends to show it was not defective but adequately served the purpose for which it was intended. And it is a matter of common knowledge that it is this mechanism that keeps the door closed while a motor vehicle is in motion. Locking devices serve another purpose.
"The catches on that door are exactly the same as you'd have on a Cadillac or most any General Motors automobile. They have two catches on them. There is a groove catch and also the latch catch and the latch catch has a safety catch on it too. . . . There is no safety device other than the regular conventional Cadillac door latch. That's all any automobile has. . . . Jar or vibration will not cause the door to come unlatched any more so than it would on a regular automobile. I'll say there is as much chance of that door flying open from the jar as there would be on your car or my car or anybody else's automobile . . ."
Since there was no defect in the conventional lock and latch mechanism, there was no danger created by any defect in the mechanism which held the door closed while it was in motion, notice of which had been brought home to defendant and of which he should have warned plaintiff. Anno. 21 A.L.R.2d 916. Nor is there any evidence tending to show that the door would open when someone leaned his weight against it. Rushing v. Mulhearn Funeral Home, supra; Everett v. Evans, 207 S.W.2d 350.
So then, it is just as reasonable to surmise that plaintiff voluntarily opened the door and threw out a cigar or cigarette butt or other waste material as it is to "infer" that plaintiff was suddenly thrown against the door, causing it to fly open. Either conclusion rests on pure speculation. Everett v. Evans, supra.
The plaintiff further insists there was a patched place in the highway; that when the ambulance passed over this place at a high rate of speed it caused a jolt or jar which either caused the door to open or threw plaintiff against it with such force as to cause it to open. This position is untenable, in the first place, for the reason there is no evidence the patched place existed on the day of the accident. In the second place, if we concede that it did then exist, there is no evidence tending to show that it was either elevated above or depressed below the surface of the road so as to disturb the even tenor of a motor vehicle passing over it.
Lastly, the plaintiff urges the view that the seat furnished him was small and so arranged that a man of his size seated in it had his hip pressed against the door and the door handle in such manner that the jarring and swaying of the ambulance when operated at a high rate of speed would cause his hip to slip or slide against the handle and thus open the door. This position would be quite plausible and might support an inference of negligence if the door could be opened by pressing the handle toward the rear of the ambulance. But such is not the case. Plaintiff was seated with his back to the driver's seat, facing the rear. If a sudden jar caused him to slip down in his seat, his hip would press against the regular door lock handle. But on this record that would only tend to brace the handle and keep it from turning — this for the simple reason the handle had to be pulled forward toward plaintiff in order to open the door.
"It (the seat) is right beside the arm rest on the door. The latch (door handle) inside the door is perpendicular and when you sit in that seat the latch strikes you approximately at your hip. . . . In order to move that latch you have to move your body, reach under and pull the latch toward the front of the ambulance. . . . In order to reach this handle you would have to reach up under the arm rest." And another witness testified to the same effect. "The latch is perpendicular as shown in the picture. In order to open the door the latch must be pulled forward. . . . The bottom part of the latch moves toward the front of the ambulance."
The very multiplicity of possible reasons why the door opened, advanced by plaintiff, merely serves to emphasize the speculative nature of the testimony. There is no evidence in the record to support the inference that the accident was a natural and probable consequence of the defective condition of the automatic door-locking appliance. Just why it did open, in the light of the fact there was no defect in the regular door lock and latch mechanism, is a matter of speculation.
In effect the case comes to this: The plaintiff alleges and proves a defect in a special locking device — not in use at the time of the accident — and was permitted to recover in the court below on the theory that the defect in, or nonuse of, this device created a special hazard, notwithstanding the testimony that the door was equipped with the conventional door lock and latch upon which all motorists rely to keep the doors closed while their vehicles are in motion, and that this mechanism was in good working order so that "you had to use the handle to open it."
The record presents one of the tragedies of life. Plaintiff suffered grave injuries which affect his mind and from which he will not recover. Yet this does not warrant a judgment against the defendant unless these injuries are the proximate result of his negligence. As we read the record, there is no evidence that would warrant this conclusion.
For the reasons stated the judgment below must be
Reversed.