Hudson v. DRIVE IT YOURSELF, INC.

73 S.E.2d 4 (1952)

236 N.C. 503

HUDSON v. DRIVE IT YOURSELF, Inc., et al. (two cases).

No. 382.

Supreme Court of North Carolina.

November 19, 1952.

*5 C. M. Llewellyn and John Hugh Williams, Concord, for plaintiffs, appellees.

Hartsell & Hartsell, Concord, Brock Barkley, Charlotte, for defendant, appellant.

DEVIN, Chief Justice.

The defendant Drive It Yourself, Inc., assigns error in the denial by the trial court of its motion for judgment of nonsuit. The plaintiffs' actions are based upon allegations of breach of duty on the part of the appealing defendant in that it let to hire for use on the highway an automobile with defective brakes when the defendant knew or in the exercise of due care should have known that the brakes were in an unsafe condition.

A bailor for hire, while not an insurer, may be liable for personal injuries to the bailee or third persons proximately resulting from the defective condition of a rented automobile while being used by the bailee for the purpose known to be intended, if the bailor was aware of the defective condition or by reasonable care and inspection could have discovered it. 131 A.L.R. 845 (note); Trusty v. Patterson, 299 Pa. 469, 149 A. 717; Ferraro v. Taylor, 197 Minn. 5, 265 N.W. 829; Milestone System, Inc., v. Gasior, 160 Md. 131, 152 A. 810.

It is the duty of a bailor for hire of an automobile to use reasonable care to see that the automobile is in good condition when it is let out for use on the highway, and he is liable for injury to the bailee or a third person proximately resulting from a breach of this duty.

It is a breach of the bailor's duty to let out an automobile for hire for use on the highway with materially defective brakes when he is aware or by the exercise of due care by reasonable inspection should have known of such defective condition.

Here, according to the facts made to appear from plaintiffs' evidence, the duty devolved upon the defendant to exercise due care, by reasonable inspection of the rented automobile before delivery for use on the public highways, to avoid injury to the user or the public from defective brakes or appliances of which defendant was aware or by reasonable diligence could have discovered at the time of letting for hire. Jones v. Raney Chevrolet Co., 217 N.C. 693, 9 S.E.2d 395; Harward v. General Motors, 235 N.C. 88, 68 S.E.2d 855. However, he would not be responsible for a defect subsequently discovered which was not discernible by reasonable inspection at the time. 6 A.J. 413.

Defendant's motion for judgment of nonsuit presents the question whether plaintiffs' evidence is sufficient to make out a case of negligent breach of the duty imposed by the relationship in which the parties were placed at the time the automobile *6 was delivered to Freeman for operation on the highway. Plaintiffs' witness, however, testified the automobile, a recent model, was driven out from its place of storage, stopped and delivered to him in the customary manner, with nothing to suggest in the manner of operation that the brakes were defective. The witness Freeman then drove the automobile 5½ miles through the streets and environs of Charlotte, and, according to his testimony, had not detected anything wrong with the brakes until just before the collision with plaintiffs' car. The witness' theory was that the fluid for the hydraulic braking system was "low" so that the driver had to "pump" to make the brake operate properly. But it is not perceived how the defendant should be charged with knowledge of this fact when the witness had driven the automobile 5½ miles, during a period of 45 minutes, before he detected the faulty functioning of the brakes.

We reach the conclusion that the evidence offered was insufficient to show a negligent breach of duty on the part of the defendant, and that the motion for judgment of nonsuit should have been allowed.

Reversed.