Raymond W. COAKLEY
v.
FORD MOTOR COMPANY and Grover Shugart Motors.
No. 7121SC279.
Court of Appeals of North Carolina.
July 14, 1971. Certiorari Denied September 7, 1971.*262 White, Crumpler & Pfefferkorn, by James C. White, and Michael J. Lewis, Winston-Salem, for plaintiff-appellant.
Hudson, Petree, Stockton, Stockton & Robinson, by R. M. Stockton, Jr., and J. Robert Elster, Winston-Salem, for defendant-appellee Ford Motor Co.
Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter, Winston-Salem, for defendant-appellee Grover Shugart Motors.
Certiorari Denied by Supreme Court September 7, 1971.
BROCK, Judge.
The only exceptions which are preserved on appeal are to the entry of summary judgment in favor of defendant Shugart as to the cause of action grounded on negligence, and the allowance of the motion of defendant Ford for directed verdict in the cause of action grounded on negligence. Thus, we are not presented with any question relating to any alleged breach of warranty.
Summary Judgment for Shugart:
In Veach v. Bacon American Corp., 266 N.C. 542, 146 S.E.2d 793, the Court said:
"As to the seller of a chattel known to have been manufactured by another, the rule has been stated as follows: `A vendor of a chattel made by a third person which is bought as safe for use in reliance upon the vendor's profession of competence and care is subject to liability for bodily harm caused by the vendor's failure to exercise reasonable competence and care to supply the chattel in a condition safe for use.' [citation]. Under this rule, liability depends upon whether such seller, by the exercise of reasonable care, could have discovered the dangerous character or condition of the chattel. [citations].
"If, under the indicated circumstances, the seller knows or should have discovered a latent defect in the chattel of such nature that he, by the exercise of due care, could reasonably foresee it was likely to cause injury in the ordinary use thereof, and the seller fails to warn the buyer of such defect, the seller is liable to a buyer who, without any negligence of his own, makes ordinary use thereof and is injured on account of such defect. [citations]."
In support of his contention that it was error to grant the motion of defendant Shugart for summary judgment on the cause of action for negligence, plaintiff contends that the jury should have been allowed to determine whether Shugart, in the exercise of reasonable care, could have discovered the alleged defect, which the complaint acknowledged to be latent.
In resistance to a motion for summary judgment properly supported, the party against whom the motion is made may not rest upon the allegations or denials of his pleading, but must demonstrate that there is a genuine issue for trial. G. S. § 1A-1, Rule 56(e). In support of its motion, defendant Shugart offered the affidavit of Alex Simmons, defendant's service manager, which tended to show that "the usual 6,000-mile checkup does not include inspection of latent defects such as determining whether any of the bolts in the master cylinder are improperly threaded." Plaintiff offered no evidence to the *263 contrary. On motion for summary judgment, the test is whether the moving party presents materials which would require a directed verdict in his favor if offered as evidence at trial. Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865. In order to withstand a motion for nonsuit (or for directed verdict, under present practice), a plaintiff must offer evidence tending to show each element of actionable negligence. Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661. Assuming that the brake failure was caused by a defective master cylinder assembly, plaintiff has offered no evidence as to whether a reasonable inspection, either prior to the sale or at the time of the 6,000-mile checkup, would have disclosed the defect. The question may not be left for conjecture. Summary judgment was properly entered in the action against Shugart.
Directed Verdict for Ford:
There was evidence, consisting of testimony by plaintiff, upon which the jury could have found that plaintiff's brakes failed to function, and that such failure was the proximate cause of the collision. Defendant contends that the evidence discloses that plaintiff was contributorily negligent as a matter of law. In our opinion the evidence does not show that negligence of plaintiff proximately caused the collision.
The question remains whether there was evidence upon which the jury could have found that the brake failure was a proximate result of negligence of defendant Ford.
In the case of Gwyn v. Lucky City Motors, Inc., 252 N.C. 123, 113 S.E.2d 302, relied upon by plaintiff, there was testimony of a pre-existing defect in the master cylinder assembly of plaintiff's automobile, which could have caused the brakes to malfunction as alleged, and the case is distinguishable for that reason. In Dupree v. Batts, 276 N.C. 68, 170 S.E.2d 918, also cited by plaintiff, it was shown that the cause of the accident was the defendant manufacturer's use of an inferior grade of steel in the wheel of plaintiff's automobile.
In the present case, there was no evidence of any defect existing prior to the time of the accident, or of any negligence on the part of defendant Ford in selection of materials, in the process of assembly, or in inspection. All that is shown with regard to any alleged defect is that the master cylinder assembly was found to be damaged after the collision. For all that appears, this could as well have been a result of the collision. Even if the evidence would support an inference that the master cylinder assembly became separated from the firewall prior to the collision, and that the brake failure was caused thereby, there is no evidence of negligence on the part of defendant Ford. Negligence is never presumed from the mere fact of an accident or injury, except in the narrow class of cases to which the doctrine of res ipsa loquitur is applicable. The plaintiff has the burden of establishing not only negligence, but also that such negligence was the proximate cause of his injury. Evidence which merely takes the matter into the realm of conjecture is insufficient. Plaintiff's evidence fails to show actionable negligence or any causal relation between the condition of the automobile when it was purchased and the accident resulting in his injury. cf. Harward v. General Motors Corp., 235 N.C. 88, 68 S.E.2d 855. Directed verdict was properly granted.
Plaintiff also assigns as error the exclusion of certain testimony relating to the working of automobile brakes. To the extent that the testimony is made to appear in the record, it would not, even if admitted, have cured the fundamental defect in plaintiff's case, to wit, the failure to show actionable negligence on the part of defendant Ford. Therefore, the exclusion was, at most, harmless error.
Affirmed.
MORRIS and HEDRICK, JJ., concur.