{ "id": 8622484, "name": "R. FRAZIER PEMBERTON and MRS. MARGUERITE PEMBERTON HARRELSON, Guardians of W. S. PEMBERTON, v. J. L. LEWIS, Trading as LEWIS FUNERAL HOME, and RICHARD GORDON", "name_abbreviation": "Pemberton v. Lewis", "decision_date": "1952-03-05", "docket_number": "", "first_page": "188", "last_page": "203", "citations": [ { "type": "official", "cite": "235 N.C. 188" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "207 S.W. 2d 350", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8511422 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/tenn-app/30/0450-01" ] }, { "cite": "200 So. 52", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 10028226 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/so/200/0052-01" ] }, { "cite": "24 S.E. 2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631706 ], "opinion_index": 0, "case_paths": [ "/nc/222/0616-01" ] }, { "cite": "21 A.L.R. 2d 916", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "opinion_index": 0 }, { "cite": "51 L.R.A. (N.S.) 1164", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 1 }, { "cite": "166 S.W. 563", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "112 Ark. 417", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1538827 ], "opinion_index": 1, "case_paths": [ "/ark/112/0417-01" ] }, { "cite": "199 S.E. 403", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "214 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630873 ], "opinion_index": 1, "case_paths": [ "/nc/214/0388-01" ] }, { "cite": "5 S.E. 2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "216 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607027 ], "opinion_index": 1, "case_paths": [ "/nc/216/0511-01" ] }, { "cite": "24 S.E. 2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "222 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632195 ], "opinion_index": 1, "case_paths": [ "/nc/222/0704-01" ] }, { "cite": "40 S.E. 2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "227 N.C. 10", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620200 ], "opinion_index": 1, "case_paths": [ "/nc/227/0010-01" ] }, { "cite": "61 S.E. 2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "232 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611663 ], "opinion_index": 1, "case_paths": [ "/nc/232/0623-01" ] }, { "cite": "191 S.E. 358", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "211 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628393 ], "opinion_index": 1, "case_paths": [ "/nc/211/0632-01" ] }, { "cite": "200 S.E. 5", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "214 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631734 ], "opinion_index": 1, "case_paths": [ "/nc/214/0526-01" ] }, { "cite": "40 S.E. 2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "226 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624668 ], "opinion_index": 1, "case_paths": [ "/nc/226/0700-01" ] }, { "cite": "178 S.E. 601", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "207 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628584 ], "opinion_index": 1, "case_paths": [ "/nc/207/0787-01" ] }, { "cite": "181 S.E. 336", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "208 N.C. 414", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608535 ], "opinion_index": 1, "case_paths": [ "/nc/208/0414-01" ] }, { "cite": "16 S.E. 2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "220 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11298838 ], "opinion_index": 1, "case_paths": [ "/nc/220/0041-01" ] }, { "cite": "26 S.E. 2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "223 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608975 ], "opinion_index": 1, "case_paths": [ "/nc/223/0390-01" ] }, { "cite": "49 S.E. 2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "229 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166144 ], "opinion_index": 1, "case_paths": [ "/nc/229/0382-01" ] }, { "cite": "62 S.E. 2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "232 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613292 ], "opinion_index": 1, "case_paths": [ "/nc/232/0694-01" ] }, { "cite": "63 S.E. 2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "233 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600988 ], "opinion_index": 1, "case_paths": [ "/nc/233/0175-01" ] }, { "cite": "51 S.E. 2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "229 N.C. 773", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12168068 ], "opinion_index": 1, "case_paths": [ "/nc/229/0773-01" ] }, { "cite": "56 S.E. 2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "231 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629236 ], "opinion_index": 1, "case_paths": [ "/nc/231/0242-01" ] }, { "cite": "58 S.E. 2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "231 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631749 ], "opinion_index": 1, "case_paths": [ "/nc/231/0680-01" ] }, { "cite": "173 S.E. 535", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "162 Va. 42", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 1969510 ], "opinion_index": 1, "case_paths": [ "/va/162/0042-01" ] }, { "cite": "25 A.L.R. 626", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "162 A. 379", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "104 Vt. 468", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4568991 ], "opinion_index": 1, "case_paths": [ "/vt/104/0468-01" ] }, { "cite": "174 A. 817", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "114 Pa. Super. 425", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 975911 ], "opinion_index": 1, "case_paths": [ "/pa-super/114/0425-01" ] }, { "cite": "122 A. 121", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "99 Conn. 573", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 386267 ], "opinion_index": 1, "case_paths": [ "/conn/99/0573-01" ] } ], "analysis": { "cardinality": 1408, "char_count": 44227, "ocr_confidence": 0.484, "pagerank": { "raw": 1.8070776617052619e-07, "percentile": 0.717257260944557 }, "sha256": "f52fc6eb0ba6ade1665d66ef9610fd05e4d141ed8ec597336bd7bab96a169e14", "simhash": "1:17612462fabce1fc", "word_count": 7520 }, "last_updated": "2023-07-14T17:52:11.505162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "R. FRAZIER PEMBERTON and MRS. MARGUERITE PEMBERTON HARRELSON, Guardians of W. S. PEMBERTON, v. J. L. LEWIS, Trading as LEWIS FUNERAL HOME, and RICHARD GORDON." ], "opinions": [ { "text": "BaeNHill, J.\nOn this record defendant was a private or contract carrier of passengers for hire.\nAs 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.\nDid 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.\nThe 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.\nWe 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.\nThe 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.\nThe 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 ?\nPlaintiff 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\u2019s seat so that it could not be opened by anyone in the patient compartment.\nEvery automobile bas 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 \u201cpush button\u201d device which may be used to lock the door from the inside.\nSuch 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.\nThere 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.\n\u201cThe catches on that door are exactly the same as you\u2019d 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\u2019s 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\u2019ll 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\u2019s automobile . . .\u201d\nSince 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.\nSo 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 \u201cinfer\u201d that plaintiff was suddenly thrown against the door, causing it to fly open. Either conclusion rests on pure speculation. Everett v. Evans, supra.\nThe 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.\nLastly, 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\u2019s 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 \u2014 this for the simple reason the handle had to be pulled forward toward plaintiff in order to open the door.\n\u201cIt (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.\u201d And another witness testified to the same effect. \u201cThe 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.\u201d\nThe 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.\nIn effect the ease comes to this: The plaintiff alleges and proves a defect in a special locking device \u2014 not in use at the time of the accident\u2014 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 \u201cyou had to use the handle to open it.\u201d\nThe 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.\nFor the reasons stated the judgment below must be\nReversed.", "type": "majority", "author": "BaeNHill, J." }, { "text": "ERVIN, J.,\ndissenting: According to my interpretation of the case on appeal, the evidence of the plaintiffs is sufficient to support the conclusion that the pitiful plight of their ward, W. S. Pemberton, is the natural and probable consequence of the virtual refusal of the defendants to keep in proper repair a simple safety appliance of a type in general and approved use on ambulances. In consequence, I cannot join in the decision holding that in no view of the testimony can the defendants be deemed guilty of actionable negligence. The reasons which prompt my dissent are set forth below.\nThe decisions explaining how the court determines whether the evidence is sufficient to withstand a motion for compulsory nonsuit in a case where the defendant offers no evidence are well-nigh as numerous as the \u201cautumnal leaves that strow the brooks in Vallombrosa.\u201d According to these decisions, the court must do these things in performing this judicial task:\n1. The court must take it for granted that the plaintiff\u2019s evidence is true, and give the plaintiff the benefit of every favorable inference which his evidence fairly supports. Graham v. Gas Co., 231 N.C. 680, 58 S.E. 2d 757; Higdon v. Jaffa, 231 N.C. 242, 56 S.E. 2d 661; Hughes v. Thayer, 229 N.C. 773, 51 S.E. 2d 488.\n2. The court must resolve all conflicts and discrepancies in the evidence in the plaintiff\u2019s favor. Sanders v. Hamilton, 233 N.C. 175, 63 S.E. 2d 187; Jackson v. Hodges, 232 N.C. 694, 62 S.E. 2d 326; Barlow v. Bus Lines, 229 N.C. 382, 49 S.E. 2d 793; Bank v. Ins. Co., 223 N.C. 390, 26 S.E. 2d 862; Edwards v. Junior Order, 220 N.C. 41, 16 S.E. 2d 466; Dozier v. Wood, 208 N.C. 414, 181 S.E. 336; Lincoln v. R. R., 207 N.C. 787, 178 S.E. 601.\n3. The court must deny the motion to nonsuit if it appears that a recovery can be had by the plaintiff upon any view of the facts which the evidence as thus interpreted reasonably tends to establish. Graham v. Gas Co., supra; Cox v. Hinshaw, 226 N.C. 700, 40 S.E. 2d 358; Gorham v. Insurance Co., 214 N.C. 526, 200 S.E. 5; Diamond v. Service Stores, 211 N.C. 632, 191 S.E. 358.\nWhen the plaintiffs brought this action against the defendants, they assumed the burden of producing evidence sufficient to establish the three essential elements of actionable negligence, namely: (1) That the defendants were under a legal duty to protect the plaintiffs\u2019 ward against injury; (2) that tbe defendants failed to perform that duty; and (3) that such failure was the proximate cause of injury to the plaintiff\u2019s ward. Holderfield v. Trucking Co., 232 N.C. 623, 61 S.E. 2d 904; Hammett v. Miller, 227 N.C. 10, 40 S.E. 2d 480; Truelove v. Railroad, 222 N.C. 704, 24 S.E. 2d 537; Gold v. Kiker, 216 N.C. 511, 5 S.E. 2d 548; Ellis v. Refining Co., 214 N.C. 388, 199 S.E. 403.\nA consideration of the question whether the plaintiffs have satisfied the requirement of the law in this respect necessitates some statement of their evidence. It conduces to convenience of narration to call the plaintiffs\u2019 ward, W. S. Pemberton, and the defendants, J. L. Lewis and Richard Gordon, by their respective surnames.\nThe first inquiry which arises is whether the evidence suffices to show the existence of the first essential element of actionable negligence, namely: That the defendants were under a legal duty to protect Pember-ton against injury. The testimony relevant to this inquiry is summarized in the next paragraph.\nLewis, a mortician at Tabor City, North Carolina, owned a combination motor ambulance and hearse, which he used on special occasions to transport patients and persons ministering to them from one place to another for hire. Lewis employed Gordon to drive this vehicle, which is hereinafter designated as an ambulance. On 27 October, 1949, Lewis and Pemberton entered into an express contract whereby Lewis obligated himself to have Gordon transport Pemberton and Pemberton\u2019s sick son in the ambulance from Tabor City to Roanoke, Virginia, where Pember-ton\u2019s son was to he placed in a hospital, and whereby Pemberton bound himself to pay Lewis a stipulated compensation for such transportation. The tragic event giving rise to the present litigation occurred while Gordon was carrying out this contract.\nThis evidence compels an affirmative answer to the first inquiry. It discloses that Lewis was a private carrier of passengers for hire, i.e., one, who, without being engaged in such business as a public employment, undertakes by way of special contract to transport persons in a particular case for hire. Blashfield\u2019s Cyclopedia of xYutom.obile Law and Practice, sections 2141, 2141.5; 13 C.J.S., Carriers, section 531. It also shows that at the time named in the pleadings the relation of private carrier and passenger existed between Lewis and Pemberton, and Gordon was employed by Lewis to perform the obligations which Lewis owed Pemberton by virtue of that relationship.\nA private carrier of passengers for hire is under the legal duty to exercise ordinary care to transport his passengers safely, and is liable to them for personal injuries proximately resulting from his negligence in failing to exercise such care. Forbes v. Reinman, 112 Ark. 417, 166 S.W. 563, 51 L.R.A. (N.S.) 1164; Duffy v. J. W. Bishop Co., 99 Conn. 573, 122 A. 121; Lazor v. Banas, 114 Pa. Super. 425, 174 A. 817; Campbell v. Campbell, 104 Vt. 468, 162 A. 379, 25 A.L.R. 626; Garrett v. Hammack, 162 Va. 42, 173 S.E. 535; Blashfield\u2019s Cyclopedia of Automobile Law and Practice, section 2271; 9 Am. Jur., Carriers, section 10; 13 C.J.S., Carriers, section 678d. When a private carrier undertakes to transport passengers by motor vehicle for hire, his legal duty to exercise ordinary care for their safety imposes upon him these specific obligations: (1) To exercise reasonable care to supply a motor vehicle reasonably safe for the carriage of his passengers; (2) to subject his motor vehicle to reasonable inspection to discover defects in it; (3) to warn his passengers of nonapparent dangers which he actually or constructively knows are involved in the use of his motor vehicle; and (4) to drive his motor vehicle on the highway at a speed which is reasonable and prudent under the existing conditions. The American Law Institute\u2019s Eestatement of the Law of Torts, Volume 2, Negligence, section 392; G.S. 20-141 (a).\nThis brings us to the question whether the evidence suffices to show the existence of the second essential element of actionable negligence, to wit : That the defendants failed to perform their legal duty to protect Pember-ton against injury. The answer to this query is to be found in the testimony bearing on the character of the vehicle as well as in that relating to the conduct of the defendants.\nThe conveyance was a \u201c1947 Miller body Cadillac\u201d ambulance. Transparent slide bars or windows divided the ambulance into two compartments : a front one, where the driver sat; and a rear one, where the patient and his attendant rode. The left-hand half of the rear compartment was fitted with a cot for the patient and the right-hand half was equipped with two seats for the attendant, one of them being a front seat, which faced backwards, and the other being a rear seat, which faced forwards. The ambulance had five doors, two on each side and one at the back. The two foremost side doors afforded access to the front or driver\u2019s compartment, and the other three doors furnished entrance to the rear or patient\u2019s compartment. The right side door to the front compartment, which is hereafter called the driver\u2019s door, was hinged at its front, and the right side door to the rear compartment, which is hereafter designated as the patient\u2019s compartment door, was hinged at its rear.\nWhen the ambulance was put on the market by its manufacturer and purchased by Lewis, it was equipped with two mechanisms to secure the patient\u2019s compartment door when such door was closed. One of them was a conventional door-catch or latch similar to that in common use on ordinary passenger-carrying automobiles, and the other was an automatic door-locking appliance, which was of a type in general and approved use upon ambulances, and which was designed to enable the driver to prevent the patient's compartment door from opening while t\u00a1he vehicle was in motion. When this automatic door-locking appliance was in operating condition, it automatically locked the patient\u2019s compartment door whenever the driver\u2019s door was closed so that the patient\u2019s compartment door could not be either accidentally or intentionally opened from either the inside or the outside while the driver\u2019s door remained closed.\nAlthough the majority opinion does not expressly so state, it does intimate that the patient\u2019s compartment door was also equipped with a third door-closing mechanism, namely, a \u201cpush button device\u201d similar to that in use on ordinary passenger-carrying motor vehicles. According to my reading of the ease on appeal, this intimation cannot be reconciled with the testimony of Harry Mashburn, the only witness queried on the matter. He stated that the ambulance did \u201cnot have that catch on it.\u201d The majority opinion calls the automatic door-locking appliance \u201cthe dowel pin lock\u201d and makes this observation: \u201cJust when the dowel pin lock was installed is not clear.\u201d According to my interpretation of the case on appeal, this statement is based on a misconstruction of the testimony of A. J. Inman, a mechanic residing near Tabor City, who is briefly quoted in the majority opinion. When Inman\u2019s evidence is read aright in its entirety, it shows that he made repairs on the ambulance subsequent to Pemberton\u2019s injury, and that he was talking about a new automatic door-locking appliance which he put on the vehicle at that time. Besides, the statement is wholly inconsistent with the testimony of Y. C. Ward and Harry Mashburn. Ward stated that he was employed by Lewis prior to January, 1949; that he drove the ambulance in question; that the ambulance was equipped with the automatic door-locking appliance when \u201cthey first got it\u201d; that the appliance soon fell into disrepair; and that it was not in operating condition when he left the employ of Lewis approximately ten months before the accident. Mashburn testified that he was a salesman for the A. J. Miller Company, which sold Miller body Cadillac ambulances; that the automatic door-locking appliances were put on such ambulances by the manufacturer; and that similar door-locking appliances, \u201ceither automatic or hand operated,\u201d had been in general and approved use on ambulances ever since the vehicle in question was made.\nThe front seat in the rear compartment, which is hereafter called the passenger seat in deference to the nomenclature of the majority opinion, was adjacent to the patient\u2019s compartment door. The conventional door-catch or latch securing this door when closed was controlled or operated on the inside by a perpendicular inside door-handle made of metal. This door-handle was hinged at its top to the inside of the door just below an arm-rest, which was attached to the inside of the door at a point \u201capproximately ten inches above the level of the (passenger) seat.\u201d The potential movement of the inside door-handle was limited. It would turn one way only, i.e., upwards toward the front of the ambulance for a space not exceeding a quarter of a circle. Whenever the inside door-handle was turned by any force, whether accidentally or intentionally applied, to any appreciable extent in the only direction in which it could move, i.e., upwards, and forward in an arc, it disengaged the conventional door-catch or latch securing the patient\u2019s compartment door. For this reason, such movement of the inside door-handle would cause the door in question to open if the driver\u2019s door was not closed or if the automatic door-locking appliance was not in operating condition. Inasmuch as the patient\u2019s compartment door was hinged at its rear, its certain and speedy opening was insured by the inevitable friction generated by the forward movement of the ambulance in case the conventional door-catch or latch became disengaged while the vehicle was in motion and the automatic door-locking appliance was not in operating condition.\nThe passenger seat was small in area and hard in composition. When the attendant ministering to a patient rode in this seat, he necessarily traveled backwards with his left thigh and knee virtually under and against the lower and moveable end of the inside door-handle which controlled the conventional door-catch or latch securing the patient\u2019s compartment door. His left elbow, forearm and hand were in constant danger of forcible contact with the door-handle, regardless of whether he placed them on the arm rest or elsewhere. There was no substantial object within his reach which he could grasp to keep from sliding about on the seat, or to steady his body against any external force occasioned by the movement of the ambulance.\nThe automatic door-locking appliance fell into disrepair and ceased to operate at least as early as January, 1949. Neither Lewis nor Gordon made any effort to restore it to operating condition.\nWhen Pemberton presented himself and his son to Gordon at Tabor City on 27 October, 1949, for transportation to Roanoke, Yirginia, pursuant to his contract with Lewis, Gordon put Pemberton\u2019s son, who was in a comatose state, upon the cot in the rear compartment of the ambulance, and permitted Pemberton to occupy the passenger seat in such compartment for the purpose of ministering to his unconscious son while the vehicle was en route to Roanoke. Gordon closed the door of the ambulance before he put the vehicle in motion. Neither Lewis nor Gordon warned Pemberton that the automatic door-locking appliance was in disrepair, and that in consequence there was danger that the door beside his seat would be opened while the ambulance was in motion in case the pressure of any part of his body on the lower and movable end of the door-handle caused the door-handle to turn in the only direction in which it could move, i.e., upward and forward in an arc, to any appreciable extent. Inasmuch as the defective state of the automatic door-locking appliance was not visible to a passenger, the defect and tbe resultant danger were not open to ordinary observation.\nWhile the ambulance was \u201crunning very fast\u201d along a highway in Guilford County, North Carolina, the door beside the seat occupied by Pemberton suddenly opened, and Pemberton fell from the ambulance, which dragged him along the highway for 300 feet and thereafter continued on its way for an additional 300 feet before Gordon brought it to a standstill. As a consequence of the opening of the door and his resultant fall, Pemberton suffered injuries, which disabled him mentally as well as physically and necessitated the appointment of the plaintiffs as his guardians.\nThe only witness to see the ambulance at the precise moment of the accident was Mrs. Eebecca Ward, who said \u201cit appeared to be running very fast.\u201d The statement in the majority opinion that the vehicle was proceeding at about fifty-five miles per hour at that time is based on the evidence of State Highway Patrolman Lane, who testified that he questioned Gordon on the day of the accident and that Gordon \u201csaid he was doing about fifty-five miles an hour.\u201d There is nothing in the record to indicate that Gordon was seeking to merit the praise bestowed by the Psalmist upon the person \u201cthat sweareth to his own hurt and changeth not\u201d at the time he undertook to explain to the patrolman the circumstances surrounding the critical injury to his passenger. Inasmuch as the rear view mirror afforded Gordon a reflected view of the entire rear compartment at all times, the fact that the ambulance overshot the point where the door opened by 600 feet before it was brought to a standstill is sufficient to warrant the conclusion that the speed of the vehicle far exceeded the estimate of its driver. Blashfield\u2019s Cyclopedia of Automobile Law and Practice, section 6560.\nA. J. Inman testified that he made certain experiments in the ambulance in question while the action was being tried in the court below; that he sat in the passenger seat beside the patient\u2019s compartment door in the rear compartment when the automatic door-locking appliance \u201cwas off\u201d and the conventional door-catch or latch \u201cwas on\u201d; that he turned on the seat so as to bring his elbow and knee into contact with the door-handle; and that \u201cthe door opened up\u201d whenever his elbow or knee came into contact with the door-handle.\nThe majority of the court and I reach diametrically opposite conclusions on this phase of the case. They hold that the evidence is wholly insufficient in any view to justify a finding that the defendants breached any one of the four specific obligations inherent in their legal duty to exercise ordinary care to transport Pemberton safely.\nIf I read the majority opinion aright, it is based on the portion of the testimony of Harry Mashburn quoted in the twelfth paragraph of the opinion and these additional considerations: (1) That the ambulance was equipped with the conventional door-catch or latch found on all ordinary passenger-carrying automobiles; (2) that such conventional door-catch or latch was free from defect; and (3) that \u201cit is a matter of common knowledge that it is this mechanism (i.e., the conventional door-catch or latch) that keeps the door closed while a motor vehicle is in motion.\u201d\nWhen the additional considerations motivating the decision of the majority are analyzed, they come to this: The evidence compels the single conclusion that the defendants fully performed their legal duty to exercise ordinary care to transport Pemberton safely by furnishing an ambulance which had no door-securing device whatever except the conventional door-catch or latch found on all ordinary passenger-carrying automobiles. I am unable to perceive how all the testimony in this cause drives the reasoning faculty to this solitary conclusion. A passenger in an ordinary passenger-carrying motor vehicle sits on a soft and comparatively commodious seat, faces to the front, is held in place by the forward motion of the conveyance, and is not in virtual contact with the lower and moveable end of the inside door-handle. It is a far cry from the circumstances surrounding the passenger in the ordinary passenger-carrying automobile to those which encircled Pemberton in the defendants\u2019 ambulance. This being true, the evidence admits of the finding that the conventional door-catch or latch was wholly insufficient to keep the ambulance door closed while that vehicle was in motion, even though it may have been sufficient to secure the door of an ordinary passenger-carrying automobile while it was in motion.\nThe majority opinion candidly concedes that the plaintiffs\u2019 testimony tends to show that the automatic door-locking appliance \u201cwas in a state of bad repair\u201d and that \u201cthe defendants admit it was not in use\u201d on the day Pemberton was injured. The opinion dismisses this testimony and this admission with the declaration that they have no bearing whatever on the question whether the defendants breached their legal obligation to exercise reasonable care to supply a motor vehicle reasonably safe for the carriage of Pemberton. The declaration of the majority rests on the theory that the automatic door-locking appliance was not designed to keep the patient\u2019s compartment door closed while the ambulance was moving, but that, on the contrary, it served \u201canother purpose.\u201d The majority does not undertake to tell us what this other purpose was, or to explain why the manufacturer failed to put similar door-locking appliances on the other two doors of the rear compartment, which happened not to be adjacent to either of the seats provided for attendants. While Harry Mashburn did testify that \u201cjar or vibration will not cause the door to come unlocked any more so than it would on a regular automobile,\u201d he did not deny the validity of the plaintiff\u2019s theory of the ease. He said : \u201cI never did get in . . . and see if I could open it with my elbow or my knee.\u201d\nIn my judgment, the testimony reasonably warrants this conclusion: The manufacturer of the ambulance appreciated the somewhat obvious fact that the conventional door-catch or latch was insufficient to secure the patient\u2019s compartment door while the passenger seat was occupied by an attendant, and installed the automatic door-locking appliance for the precise purpose of safeguarding an attendant riding on that seat from the very mishap which befell Pemberton.\nMoreover, the evidence fairly supports these inferences on the present phase of the case:\n1. The automatic door-locking appliance was defective, creating the danger that the door adjacent to the seat occupied by Pemberton would suddenly open in case the movement of the ambulance caused his body to come into forcible contact with the lower and moveable end of the inside door handle.\n2. The danger was known to Lewis and Gordon, or had existed for such a time that they would have known of it had they subjected the ambulance to reasonable inspection.\n3. The danger was not apparent to Pemberton, who was justifiably ignorant of it. Neither Lewis nor Gordon gave Pemberton any warning of his peril.\n4. Gordon undertook to carry Pemberton and his son along the highway at an imprudent and unreasonable speed notwithstanding the tendency of such speed to cause Pemberton\u2019s body to come into forcible contact with the lower and moveable end of the inside door-handle.\nThis being true, the testimony suffices to establish that the defendants failed to exercise ordinary care to transport Pemberton safely.\nThis brings me to the final question whether the evidence is sufficient to show the existence of the third essential element of actionable negligence, namely: That the failure of the defendants to exercise ordinary care to transport Pemberton safely was the proximate cause of his injuries.\nThe majority of my brethren adjudge with complete finality of conviction that this inquiry must be answered in the negative. Their opinion lays hold on the evidence that the inside door handle \u201chad to be pulled\u201d toward the front of the ambulance to open the patient\u2019s compartment door, and declares that it was logically impossible for any external force occasioned by the movement of the ambulance to cause Pemberton\u2019s body to push the door-handle in that direction. I entertain grave misgivings as to the validity of the thesis that a judicial tribunal can expect observance of the precepts of logic by such an illogical thing as an accidental external force. It can certainly be argued with much show of reason that such a force partakes of the nature of the mule, which \u201cdon\u2019t kick according to no rule.\u201d Be this as it may, the evidence reveals facts which ought to satisfy the logician as well as the jury that the accident in question could have happened in exactly the way in which the plaintiffs allege it did happen.\nThe evidence that the inside door handle \u201chad to be pulled\u201d toward the front of the ambulance to open the patient\u2019s compartment door does not imply that such door handle had to be pulled or pushed directly toward the front of the vehicle. Indeed, it could not move in that precise direction. Its lower and moveable end traveled in one way only, i.e., upward and forward in an arc. As a consequence, the patient\u2019s compartment door could- be opened by any pressure which turned the lower and moveable end of the door handle upward and forward. Manifestly, such a pressure could be caused by a force moving either upward or forward. The notion of the majority that any movement of Pemberton\u2019s body was necessarily in the direction of the rear of the ambulance ignores various important factors. One of them is that Pemberton instinctively pressed his body backward towards the front of the ambulance to counteract the tendency of the forward-motion of the vehicle to propel him towards the rear, and another is that the external force occasioned by the motion of the ambulance would bounce Pemberton upwards or impel him backwards or forwards or sideways, depending upon the origin and direction of the force and its interaction with Pemberton\u2019s instinctive reaction. These things being so, the external force occasioned by the motion of the ambulance could bring Pemberton\u2019s elbow or knee or thigh into forcible contact with the lower and moveable end of the inside door handle in such a manner as to turn such end of the door handle upwards and forwards, causing the door to open.\nMy brethren assert finally that the evidence leaves all questions arising in the case shrouded in mystery. They say that it is just as reasonable to \u201csurmise\u201d that Pemberton voluntarily opened the door as it is to \u201cinfer\u201d that his body was brought into forcible contact with the lower and moveable end of the door handle by the movement of the ambulance, causing the door to open.\nThe testimony discloses that Pemberton was a mature man in the full possession of all his mental faculties before he fell from the moving ambulance. It is certainly not reasonable either to infer or to surmise that a reasonable man will do such an unreasonable thing as voluntarily to open the rearward-hinged door of a motor vehicle while it is being driven along the highway at a high speed.\nThe evidence does not entomb this case among the law\u2019s unsolved' riddles. Indeed, it justifies the incontrovertible assertion that the plaintiff\u2019s ward could not possibly have suffered bis disabling injuries had the defendants maintained the automatic door-locking appliance in proper condition. Moreover, it warrants these final inferences on the third phase of the case:\n1. The movement of the ambulance brought Pemberton\u2019s body into forcible contact with the lower and moveable end of the inside door handle, causing the door to open and Pemberton to fall from the moving ambulance to his injury.\n2. The mishap was the natural and probable consequence of the defective condition of the automatic door-locking appliance, the neglect of Lewis and Gordon to warn Pemberton of the resultant danger, and the speed of the ambulance.\nFor the reasons given, the evidence of the plaintiffs is sufficient to establish that Lewis was a private carrier of passengers for hire; that he and his driver Gordon were negligent in that they failed to exercise ordinary care to carry their passenger Pemberton safely; and that their negligence was the sole proximate cause of the injuries sustained by Pemberton.\nIn consequence, I vote to uphold the judgment of the trial court.", "type": "dissent", "author": "ERVIN, J.," } ], "attorneys": [ "Walter D. Thompson and Frazier <& Frazier for plaintiff appellees.", "B. B. Mallard and Smith, Sapp, Moore & Smith for defendant appellants." ], "corrections": "", "head_matter": "R. FRAZIER PEMBERTON and MRS. MARGUERITE PEMBERTON HARRELSON, Guardians of W. S. PEMBERTON, v. J. L. LEWIS, Trading as LEWIS FUNERAL HOME, and RICHARD GORDON.\n(Filed 5 March, 1952.)\n1. Carriers \u00a7 21a (3) \u2014\nA 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.\n2. Carriers \u00a7 21b: Negligence \u00a7 3% \u2014\nRes 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\u2019s evidence itself undertakes to point out reasons why the door suddenly opened.\n3. Carriers \u00a7 21b \u2014 Evidence held insufficient to show that defect in or non-use of additional automatic locking device was proximate cause of accident resulting from sudden opening of ambulance door.\nPlaintiff 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\u2019s 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. Selcl: Whether the door was intentionally opened by plaintiff or whether the movement of the vehicle could have caused plaintiff\u2019s 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.\nErvin, J., dissenting.\nAppeal by defendants from Mo.ore, J., June Term, 1951, Guilfoed.\nReversed.\nCivil action ex clelicto to recover damages for personal injuries.\nDefendant Lewis operates a funeral borne. In connection therewith be maintains a combination hearse and ambulance. On the occasion of plaintiff\u2019s 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.\nThe ambulance was a 1947 Miller body Cadillac having two compartments \u2014 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 \u2014 one to the driver\u2019s 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\u2019s 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' \u2014 \u2022 the one here involved \u2014 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.\nThere 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\u2019s door to the front framework of the patient compartment door and is equipped with a spring so that when the driver\u2019s 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\u2019s 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.\nOn 27 October 1949 defendant contracted to transport plaintiff\u2019s son, an invalid, from Tabor City to the Veterans\u2019 Hospital at Eoanoke, 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 tbe door immediately under and in a gap in tbe arm rest. To open tbe door, tbis handle must be pulled forward toward tbe front of tbe vehicle and toward plaintiff as be was seated in tbe chair assigned to him. In order to open tbe door, tbe passenger would have to move bis body, reach under tbe arm rest, and pull tbe latch toward tbe front of tbe ambulance. On tbe day in question, tbe driver closed tbe patient compartment door before putting tbe vehicle in motion.\nJust when tbe dowel pin lock was installed is not clear. One witness, a mechanic, testified that it was \u201cjust tbe same as it was when I put it on there\u201d except that a new part had been put on it. Another testified that either a band-operated or automatic safety latch was in general use in 1947.\nWhile tbe vehicle was proceeding at about 55 miles per hour on a highway in Guilford County, tbe door opened and plaintiff fell out. Plaintiff\u2019s only eyewitness testified: \u201cI saw it for only a moment. It appeared to be running very fast.\u201d Plaintiff was dragged a distance of about 300 feet before losing contact with tbe ambulance. Tbe ambulance continued on for another 300 feet. Just when tbe driver became aware plaintiff bad fallen from tbe ambulance is not disclosed.\nShortly before tbe door opened, tbe ambulance passed over tbe crest of a bill. At tbe time of tbe trial, there was a patch or repaired place in tbe pavement about thirteen feet wide. Tbis patched place is about 126 feet beyond and on tbe near side of tbe crest of tbe bill; that is, it is between tbe crest of tbe bill and the place where plaintiff fell from tbe ambulance. Tbe witness testified that she did not know whether it was there on tbe day of tbe accident or not. There is no evidence that it was. When tbe ambulance passed over tbe crest of tbe bill, tbe door was closed. Shortly thereafter, a witness beard a rather loud noise, looked out, and saw plaintiff being dragged along tbe highway. Whether tbe noise was produced by tbe opening of tbe door or by some other cause is not made to appear.\nThere is no evidence as to tbe absence of any object inside tbe passenger compartment to which a passenger could bold to balance himself. Nor is there any evidence tbe door bad ever opened while tbe ambulance was in motion.\nPlaintiff suffered serious and permanent physical injuries.\nTbe defendants\u2019 motion for judgment of nonsuit at the close of plaintiff\u2019s evidence was overruled and defendants excepted. Appropriate issues were submitted to tbe jury and were answered in favor of plaintiff. From judgment on tbe verdict defendants appealed.\nWalter D. Thompson and Frazier <& Frazier for plaintiff appellees.\nB. B. Mallard and Smith, Sapp, Moore & Smith for defendant appellants." }, "file_name": "0188-01", "first_page_order": 238, "last_page_order": 253 }