Garvey v. Atlantic Greyhound Corp.

Devin, J. Defendant’s appeal from an adverse judgment below presents at the outset the question whether plaintiff’s evidence was sufficient to make out a case of actionable negligence on the grounds alleged. Error is assigned in the denial of defendant’s motion for judgment of nonsuit and in the refusal of the court to give peremptory instructions in its favor as requested. However, giving to the plaintiff’s evidence that favorable consideration required under the rule as against a demurrer (Nash v. Royster, 189 N. C., 408, 127 S. E., 356), we conclude she has offered evidence of negligence in respect to the manner of operation of defendant’s bus on the occasion of her injury and in respect to the maintenance of the door fastening for the protection of passengers, and that her injury proximately resulted therefrom, and that this evidence is of sufficient probative value to withstand defendant’s motions. “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” Lavender v. Kurn, 327 U. S., 645. Considering plaintiff’s testimony and that of her witnesses, together with the inferences reasonably deducible therefrom, in the light favorable to her, it would seem that the injury of which plaintiff complains resulted from being thrown from the defendant’s swiftly moving bus, and that the violent motions of the bus as detailed, due to improper operation, caused her to lose her balance and fall forward on the platform and caused the inadequately secured door to become unfastened and fly open, subjecting plaintiff to the centrifugal force of the motion of the bus in traversing a sharp left curve, and that in consequence she was swept out of the open door of the bus to the ground, and injured. Further, we think the evidence susceptible of the inference that the attempt of the driver of the bus to pass a car just before reaching the curve and the necessity of a quick turn to the right to avoid an oncoming car and regain the line of traffic and then to follow the curve to the left, tended to accentuate the sharpness of the turns required to be made, first to the right and then to the left, and to increase the centrifugal pull of the bus and occupants to the right in order to follow the perimeter of the curve. While the defendant in the operation of its bus would not ordinarily be held liable to a passenger for sudden jerking or jolting caused by *170 changes of speed or direction incident to the operation of the bus on the highway in relation to the traffic then being thereon, we think the plaintiff’s evidence tends to go further and to show failure to exercise proper care, under the circumstances, and that defendant’s failure in the respects alleged was the proximate cause of the injury. Note also must be taken of testimony tending to show the loosened condition of the door fastening mechanism, and this, together with evidence of improper operation of the bus, as showing causal connection between the negligence of the defendant in these respects and the injury complained of. Also must be kept in mind, in considering the evidence on the issue of negligence, that while the carrier is not an insurer of the safety of passengers whom it undertakes to transport, it does owe them the duty of exercising the highest degree of care for their safety consistent with the practical operation and conduct of its business. White v. Chappell, 219 N. C., 652, 14 S. E. (2d), 843; Hollingsworth v. Skelding, 142 N. C., 246, 55 S. E., 212. Nor do we think there was evidence of contributory negligence on the part of the plaintiff such as would justify a nonsuit on that ground. Whether she used due care under the circumstances was a question for the jury. Marzelle v. Mfg. Co., 227 N. C., 674, 44 S. E. (2d), 80; Watkins v. Raleigh, 214 N. C., 644, 200 S. E., 424; Cole v. Koonce, 214 N. C., 188, 198 S. E., 637. The defendant’s motion for judgment of nonsuit was properly denied. While defendant’s evidence tended to throw a different light on the circumstances of this occurrence, and to relieve the defendant of the imputation of negligence, and also to show want of due care on the part of the plaintiff, the jury has accepted the plaintiff’s view of what happened and found the determinative facts in her favor. The defendant assigns error in the court’s charge to the jury in respect to the statutory regulations of the speed of motor vehicles, for that in referring to G. S., 20-141, the court quoted the. statute as declaring that a speed of 45 miles per hour (outside the corporate limits of city or town) was prima facie evidence that the speed was not reasonable and prudent, and was unlawful, whereas the statute gives that prima facie effect only to speed in excess of the limit stated. This was inferentially corrected by the trial judge in his statement to the jury shortly afterward that it was “for the jury to say under all the facts and circumstances whether or not a speed in excess of 45 miles an hour is an unlawful speed, taking into consideration all the circumstances surrounding the operation of the motor vehicle.” And the court then quoted to the jury subsection 5 (c) of G. S., 20-141, which contains the provision that driving within the speed limits set out in the statute “shall not relieve *171 the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to other traffic.” The defendant argues that the misstatement of the statute made by the court should be held substantial error in view of the conflicting evidence as to the speed of the bus, some witnesses putting it above, some below, and some at 45 miles per hour. However, we do not think this inadvertence on the part of the court was in any view harmful to the defendant. The speed of the bus in traversing the curve where the injury occurred was variously stated to be from 40 to 50 miles per hour, and the reference-to speed of 45 miles per hour under the circumstances shown in this case would not seem to be important, in view of the modifying clause of the statute quoted. So material is the application of this clause to questions of liability arising out of violation of statutory speed regulations where special hazards or unusual circumstances are shown that in Kolman v. Silbert, 219 N. C., 134, 12 S. E. (2d), 915, it was held for error that the trial court in that case charged the jury as to the speed limits fixed by the statute without calling attention to the clause above referred to. In the opinion by Justice Barnhill it was said: “Whether the speed law is 45 miles per hour depends upon the circumstances at the time. . . . That part of sec. 103 (now G. S., 20-141), which fixes the rate of speed that is lawful when no special hazards exists, is secondary, facilitating proof, and must at all times be considered with proper regard to its relation to the primary and fundamental provisions of the section.” We are unable to perceive any harmful result to the defendant consequent upon the court’s reference to speed limits now complained of. It may be noted that this action arose before the speed regulations of G. S., 20-141, were amended by Chap. 1067, sec. 12, Session Laws 1947. We have examined the other exceptions noted by defendant to the court’s instructions to the jury, and brought forward in the assignments of error, and find them without substantial merit. After a careful examination of the entire record, we conclude that in the trial there was No error.