Dalrymple v. Sinkoe

53 S.E.2d 437, 230 N.C. 453, 1949 N.C. LEXIS 354

• Court: Supreme Court of North Carolina
• Decided: May 25, 1949
• Status: Published

Opinion

DenNY, J.

It appears tbe plaintiff has elected to bottom bis action on tbe negligence of the defendant in falsely representing that tbe beater sold to tbe plaintiff, was a suitable and proper one for use with liquid gas.

“If a seller, not knowing or caring whether bis representations are true or false, goes so far as to represent that tbe article sold is safe for a certain use, while it is imminently dangerous when put to that use, be is liable for negligence.” 46 Amer. Jur., p. 943. Cunningham v. House Furnishing Co., 74 N.H. 435, 69 Atl. 120; Annotations 42 A.L.R. 1255; Ahrens v. Moore, 206 Ark. 1035, 178 S.W. 2d 256; Spry v. Kiser, 179 N.C. 417, 102 S.E. 708. Walker, J., in speaking for this Court in tbe last cited case, said: “Plaintiff alleges that tbe defendants represented tbe contents of tbe bottle to be genuine sweet oil of standard purity, and also expressly warranted it to be of that kind and quality, and be offered evidence to prove tbe truth of tbe allegations. He sues both on tort for negligence and on contract because of warranty. It is not required of us to lay down tbe rule of damages upon either cause of action, as if be shows tbe actionable wrong, or tbe contract and its breach, . . . this prevents a nonsuit.”

A vendor who sells a stove that is equipped to burn one type fuel and represents that it is suitable for use with a different kind of fuel, when in fact it is imminently dangerous when so used, is liable to tbe same extent as if be bad sold a stove knowing it to be dangerously defective.

Tbe evidence tends to show tbe defendant represented that tbe stove purchased by tbe plaintiff was suitable for úse with tbe particular type of liquid gas which tbe plaintiff was using in bis place of business; when in fact, it was not suitable for use with that particular bind of gas. Moreover, it appears from tbe evidence that all tbe other gas appliances used by tbe plaintiff in bis cafe were working properly on tbe day of tbe explosion. And there is no evidence tending to show that any of tbe gas equipment used by tbe plaintiff was not properly equipped for use with Thomas’ liquid gas, except tbe burners and thermostat in tbe beater purchased from tbe defendant. However, there is evidence tending to show that tbe thermostat on this beater was not so constructed as to prevent tbe seepage of gas into the main burner when it was not burning, or to cut off tbe gas completely from tbe pilot burner when tbe pilot light went out.

Tbe appellee insists there is no causal connection between tbe construction of tbe thermostat and tbe free gas in tbe shower room. But be insists there is a causal connection between tbe possible stopping of the compressor and tbe failure to light the pilot light after the flow of gas was started under compression.

It is disclosed on this record that a compressor is a part of the necessary equipment when using Thomas’ liquid gas. Conceding that the compressor might have stopped or permitted the pressure to become so low that the pilot light went out, one of the very purposes of the thermostat was to cut off the flow of gas into the pilot burner if the pilot light went out.

The appellee further insists that regardless of any negligence on the part of the defendant, he is not liable because of the negligent conduct of the plaintiff, which contributed to his injury. It is contended the heater had no latent defects and the use the heater could be put to was easily discoverable upon an ordinary examination by reading the label and instructions imprinted thereon, which contained a positive warning to the effect the heater was not to be used with liquid gas.

In 46 Amer. Jur., p. 931, it is said: “In spite of his negligence, a seller is, of course, not liable therefor to a buyer who, by his own negligent conduct, has contributed to the injury. And while the use of the purchased article in a particular manner which would otherwise appear to be negligent may be proper where the buyer relies, and has a right to rely, upon the seller’s assurance that it is safe to use the article in such a manner, a buyer who uses the article after he discovers the danger will be held to have assumed all the risk of damage to himself, notwithstanding the seller’s assurance of safety. As in other cases in which the question of contributory negligence is involved, it is generally for the jury to determine whether, under the circumstances, the buyer was contributorily negligent in relying upon the seller’s assurance.” See also Smith v. Clarke Hardware Co., 100 Ga. 163, 28 S.E. 73; Bulman Furniture Co. v. Schmuck, 175 Ark. 442, 299 S.W. 765, 55 A.L.R. 1039; Moody v. Martin Motor Co., 76 Ga. App. 456, 46 S.E. 2d 197.

Contributory negligence is an affirmative defense which must be pleaded and proven. Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307. And a nonsuit will not be granted on this ground unless the plaintiff’s evidence establishes such plea as a matter of law. Therefore, a plaintiff will not be held guilty of contributory negligence as a matter of law, unless his evidence so clearly establishes such negligence that no other reasonable inference may be drawn therefrom. Dawson v. Transportation Co., ante, 36, 51 S.E. 2d 921; Hobbs v. Drewer, 226 N.C. 146, 37 S.E. 2d 131; Cummins v. Fruit Co., 225 N.C. 625, 36 S.E. 2d 11; McCrowell v. R. R., 221 N.C. 366, 20 S.E. 2d 352; Godwin v. R. R., 220 N.C. 281, 17 S.E. 2d 137.

Consequently, we think when the plaintiff’s evidence is taken in the light most favorable to him and he is given the benefit of every reason able inference to be drawn therefrom, it is sufficient to carry the case to the jury. Bundy v. Powell, supra; Beaman v. Duncan, 228 N.C. 600, 46 S.E. 2d 107; Nichols v. Goldston, 228 N.C. 514, 46 S.E. 2d 320; Lumber Co. v. Power Co., 206 N.C. 515, 173 S.E., 427.

The motion for judgment as of nonsuit should have been overruled.

Reversed.