Stroud ex rel. Caudie v. Southern Oil Transportation Co.

WiNBORNE, J.,

dissenting. As I understand tbe majority opinion in this case, tbe decision is not made to rest upon any contractual relationship between tbe plaintiff and tbe defendant, but upon a general duty of defendant to warn plaintiff of a danger known to it or of which it should have known in tbe exercise of ordinary care, and which was unknown *731to plaintiff or was undiscoverable by him in tbe exercise of ordinary care under tbe particular circumstances. I am unable to agree that tbe facts revealed by tbe evidence in this case, taken in the light most favorable to tbe plaintiff, bring tbe case within such rule. I think judgment as of nonsuit should be sustained.

In tbe first place, tbe evidence discloses that tbe plaintiff James Stroud was employed by tbe Bowman Oil Company at its filling station, where free service of air and water was tendered to motor vehicles stopping there, and that in bis employment plaintiff was charged with tbe duty of rendering this service to any who might apply therefor. In the performance of that duty he was acting as the agent of the Bowman Oil Company, and using for the purpose appliances furnished by his employer, and he was in no sense the agent or servant of the person or party applying for the service.

“An automobile driver stopping at a filling station for gasoline has a right to act upon the assumption that the proprietor will provide proper and safe appliances with which to work, and careful servants.” Headnote in the case Fredericks v. Atlantic Refining Company, 282 Pa., 8, 127 R. C. L., 615, 38 A. L. R., 666. This is said with reference to liability of the proprietor of the filling station to the automobile driver.

Stated conversely, an automobile driver stopping at a filling station to be served with free air there offered has a right to act upon the assumption that the proprietor will provide proper and safe appliances with which his employees are to work, and competent and careful servants to do the work, and is not liable for failure to provide either.

In the second place, the evidence for plaintiff shows that his injury was caused by a rim flange on the inner dual tire “jumping off,” while he, in the line of his duty, was in the act of performing the free service given by the Bowman Oil Company. Plaintiff testified, “I guess the thing that caused my injury was the rim coming off.” The evidence is silent as to what caused the flange rim to jump off. There is speculation that the inner tire being partially deflated while the truck was being driven along the highway may have permitted the flange to become loosened. However, the evidence is that the outside dual tire was inflated, and that the inner tire did not touch the pavement, but that it could have “hit a swell place across the road and worked off.” Yet there is no evidence that it did hit such a place.

There is no evidence that John L. McLeod and Lacy Henry, employees of defendant, who had control of the truck at the time, knew that the rim flange was loose, or that in the exercise of ordinary care they should have known it. They, testifying for plaintiff, said that they had “never heard of those rim flanges jumping off before.” Nor is there evidence that a rim flange had ever jumped off such a tire. All *732that the evidence shows they knew about it is that the inner tube had been partially deflated while the truck traveled 18 or 20 miles. The plaintiff also knew that the tire was partially deflated and that the truck had been traveling while it was deflated. He testified that the tire carried ninety pounds of pressure and that after he had put some air in the tire there was only approximately twenty pounds in it when he was hurt. He knew that the truck had been traveling and had just driven up to the filling station. This evidence shows that he had as much information from which to know of the danger as did the operatives of the truck. Both he and they all swear that they did not think any danger existed. Speaking of putting hand between the tires, John L. McLeod testified: “Never thought about it being dangerous.” Lacy Henry said: “I put one hand in through the two tires, the same way James Stroud did, and Mr. McLeod tried it the same way. ... If I hadn’t thought it was safe I wouldn’t have put mine in there and wouldn’t have let him ... I didn’t think it was dangerous.” Plaintiff testified: “I didn’t think it was anything dangerous about what I was doing.” This evidence of plaintiff negatives any contention of a danger known to defendant and unknown to plaintiff.

If it be that the' truck was originally equipped with a long stemmed valve and that a short one was substituted, the evidence fails to show that this was the real, the efficient, the proximate cause of the injury. Admittedly the rim flange “jumping off” was the cause of the injury to plaintiff.

“Foreseeable injury is requisite of proximate cause, and proximate cause is requisite of actionable negligence, and actionable negligence is requisite for recovery for personal injury negligently inflicted.” Osborne v. Ice & Coal Co., 207 N. C., 545, 177 S. E., 796.

“An event resulting from an unknown cause, or an unusual or unexpected event from a known cause; chance; casualty,” is an accident. Crutchfield v. R. R., 76 N. C., 322; Martin v. Mfg. Co., 128 N. C., 264, 38 S. E., 876; Simpson v. R. R., 154 N. C., 51, 69 S. E., 683; Fore v. Geary, 191 N. C., 90, 131 S. E., 387.

In Martin v. Mfg. Co., supra, it is said: “Injuries resulting from events taking place without one’s foresight or expectation, or an event which proceeds from an unknown cause or is an unusual effect of a known cause, and, therefore, not expected, must be borne by the unfortunate sufferer.” Such is this case as I view it.

Stagy, C. J., and Barnhill, J., concur in dissent.