Rose v. Herring Tractor & Truck Co.

Court of Appeals of North Carolina

Rose v. Herring Tractor & Truck Co.

267 S.E.2d 717, 47 N.C. App. 643, 1980 N.C. App. LEXIS 3179

CourtCourt of Appeals of North Carolina

DecidedJuly 15, 1980

Docket798SC1034

StatusPublished

This text of 267 S.E.2d 717 (Rose v. Herring Tractor & Truck Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rose v. Herring Tractor & Truck Co., 267 S.E.2d 717, 47 N.C. App. 643, 1980 N.C. App. LEXIS 3179 (N.C. Ct. App. 1980).

Pincite

Opinion

CLARK, Judge.

The plaintiff does not bring forth any argument or assignment of error or make any argument in his brief on the issues of breach of warranty or on the question of liability of International Harvester. The plaintiff therefore waives any assignment of error on these questions. N.C. App. R. 28; Crockett v. First Federal Savings and Loan Association, 289 N.C. 620, 224 S.E. 2d 580 (1976); State v. Wilson, 289 N.C. 531, 223 S.E. 2d 311 (1976).

The only question properly raised for review by this Court is whether the trial court erred in directing a verdict for the defendants. The defendants contend that the plaintiff was guilty of negligence as a matter of law because plaintiffs employee continued to drive the tractor on a public highway with knowledge that the brakes were not in proper working order and were unsafe. On the other hand, plaintiff contends that he was not contributorily negligent because he was acting in reasonable reliance upon the statements or representations of the employees of Herring Tractor that the tractor brakes were in proper working order. We do not agree with plaintiffs contentions.

“The right to rely upon the assumption that another will exercise due care is not absolute ... and must yield to the realities of the situation to the extent that if the plaintiff observes a violation of duty which imperils him, he must be vigilant in attempting to avoid injury to himself.” Harris v. Bingham, 246 N.C. 77, 79, 97 S.E. 2d 453, 455 (1957). “[W]here a *646 person sui juris knows of a dangerous condition and voluntarily goes into the place of danger, he is guilty of contributory negligence, which will bar his recovery.” Dunnevant v. R.R., 167 N.C. 232, 234, 83 S.E. 347, 348 (1914); Cook v. Winston-Salem, 241 N.C. 422, 85 S.E. 2d 696 (1955), (quoting the above language, held nonsuit properly allowed at close of plaintiffs evidence). There is no dispute about the relevant facts as quoted in the statement of facts above: plaintiffs partner and employee both knew of the defective condition of the brakes and nonetheless caused the tractor to be operated on a public highway. “Here, according to plaintiffs [evidence], the alleged known defective condition was obvious, not latent; and such defective condition was of such nature that the hazards reasonably foreseeable from the continued use and operation of the [tractor] were patent.” Nationwide Mutual Insurance Co. v. Don Allen Chevrolet Co., 253 N.C. 243, 251, 116 S.E. 2d 780, 786 (1960). The willingness of plaintiffs employee-driver and partner-owner to operate the tractor on a public highway with defective or malfunctioning brakes and knowledge thereof is negligence as a matter of law. G.S. 20-124; Wilcox v. Glover Motors, Inc., 269 N.C. 473, 153 S.E. 2d 76 (1967) (duty on both owner and driver who have knowledge); Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E. 2d 246 (1945). The entry of directed verdict for the defendant was proper.

Affirmed.

Judges Vaughn and Martin (Harry C.) concur.

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CLARK, Judge.

The plaintiff does not bring forth any argument or assignment of error or make any argument in his brief on the issues of breach of warranty or on the question of liability of International Harvester. The plaintiff therefore waives any assignment of error on these questions. N.C. App. R. 28; Crockett v. First Federal Savings and Loan Association, 289 N.C. 620, 224 S.E. 2d 580 (1976); State v. Wilson, 289 N.C. 531, 223 S.E. 2d 311 (1976).

The only question properly raised for review by this Court is whether the trial court erred in directing a verdict for the defendants. The defendants contend that the plaintiff was guilty of negligence as a matter of law because plaintiffs employee continued to drive the tractor on a public highway with knowledge that the brakes were not in proper working order and were unsafe. On the other hand, plaintiff contends that he was not contributorily negligent because he was acting in reasonable reliance upon the statements or representations of the employees of Herring Tractor that the tractor brakes were in proper working order. We do not agree with plaintiffs contentions.

“The right to rely upon the assumption that another will exercise due care is not absolute ... and must yield to the realities of the situation to the extent that if the plaintiff observes a violation of duty which imperils him, he must be vigilant in attempting to avoid injury to himself.” Harris v. Bingham, 246 N.C. 77, 79, 97 S.E. 2d 453, 455 (1957). “[W]here a *646 person sui juris knows of a dangerous condition and voluntarily goes into the place of danger, he is guilty of contributory negligence, which will bar his recovery.” Dunnevant v. R.R., 167 N.C. 232, 234, 83 S.E. 347, 348 (1914); Cook v. Winston-Salem, 241 N.C. 422, 85 S.E. 2d 696 (1955), (quoting the above language, held nonsuit properly allowed at close of plaintiffs evidence). There is no dispute about the relevant facts as quoted in the statement of facts above: plaintiffs partner and employee both knew of the defective condition of the brakes and nonetheless caused the tractor to be operated on a public highway. “Here, according to plaintiffs [evidence], the alleged known defective condition was obvious, not latent; and such defective condition was of such nature that the hazards reasonably foreseeable from the continued use and operation of the [tractor] were patent.” Nationwide Mutual Insurance Co. v. Don Allen Chevrolet Co., 253 N.C. 243, 251, 116 S.E. 2d 780, 786 (1960). The willingness of plaintiffs employee-driver and partner-owner to operate the tractor on a public highway with defective or malfunctioning brakes and knowledge thereof is negligence as a matter of law. G.S. 20-124; Wilcox v. Glover Motors, Inc., 269 N.C. 473, 153 S.E. 2d 76 (1967) (duty on both owner and driver who have knowledge); Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E. 2d 246 (1945). The entry of directed verdict for the defendant was proper.

Affirmed.

Judges Vaughn and Martin (Harry C.) concur.

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267 S.E.2d 717, 47 N.C. App. 643, 1980 N.C. App. LEXIS 3179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-herring-tractor-truck-co-ncctapp-1980.

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