
113 S.E.2d 302 (1960)
252 N.C. 123
Jullus J. GWYN, Ancillary Administrator of the Estate of Charles H. WOODRUFF, Deceased,
v.
LUCKY CITY MOTORS, INC., and Ford Motor Company.
No. 665.
Supreme Court of North Carolina.
March 16, 1960.
*304 Ernest R. Taylor, Herbert M. Bacon, Morristown, Tenn., Price & Osborne, Leaksville, and Allen, Henderson & Williams, Elkin, for plaintiff, appellant.
Brown, Scurry, McMichael & Griffin and D. Leon Moore, Reidsville, for Ford Motor Company, appellee.
BOBBITT, Justice.
Whether the evidence, when considered in the light most favorable to plaintiff, was sufficient for submission to the jury as to the alleged negligence of Ford Motor Company, is the question for decision.
It was stipulated that the 1957 Ford pickup truck was manufactured by Ford Motor Company; that it was purchased *305 by Woodruff from Crowell Long Auto Company, Inc., of Danville, Virginia, an authorized Ford dealer, on or about February 21, 1957; and that, when sold and delivered to Woodruff, it was a new truck.
Our consideration of the evidence is directed principally to plaintiff's allegation that Ford Motor Company was negligent in that it manufactured and delivered to its authorized dealer for sale a 1957 truck equipped with defective hydraulic brakes. (Note: Plaintiff also alleged negligence on the part of Lucky City Motors, Inc., and that Ford Motor Company was responsible therefor under the doctrine respondeat superior.)
"The over-whelming weight of authority is to the effect that the manufacturer of a truck, like the one here in question, owes a duty to the public, irrespective of contract, to use reasonable care in its manufacture and to make reasonable inspection of the construction in the plant where the truck was manufactured." General Motors Corporation v. Johnson, 4 Cir., 137 F.2d 320, 322; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440; 5 Am.Jur., Automobiles § 350; 60 C.J.S. Motor Vehicles § 165; Annotations: 156 A.L.R. 479; 164 A.L.R. 569, 584.
We find no North Carolina decision in which an injured party has recovered against the manufacturer of an automobile on account of negligence in the construction and assembly thereof. However, in a case where the evidence was held insufficient, plaintiff's right to recover was tested by the rule stated above. Harward v. General Motors Corp., 235 N.C. 88, 68 S.E.2d 855. Also, see Jones v. Raney Chevrolet Co., 217 N.C. 693, 9 S.E.2d 395, and Hudson v. Drive It Yourself, Inc., 236 N.C. 503, 73 S.E.2d 4.
Appellee does not question the applicability of the general rule stated above, but rightly refers to MacPherson v. Buick Motor Co., supra, as a landmark decision. Rather, appellee asserts the present case is factually distinguishable in that (1) the plaintiff in MacPherson had no notice of the defect in the wheel prior to the accident, and (2) there was no intervention by a third party "such as the intervention by Lucky City Motors in this case."
Decision requires an analysis of the evidence. In testing the sufficiency thereof, we are mindful of this well established rule: "If there is any evidence, more than a scintilla, the judge should allow the case to go to the jury, since he is not to consider the weight of the evidence, but whether there is any evidence sufficient for the jury to consider." McIntosh, North Carolina Practice and Procedure, § 565, p. 615, and cases cited.
Woodruff was an itinerant "spray painter." He worked by the job. He went from house to house in search of jobs. He would stay in one territory "until he worked out" and then move to another. In each territory he would establish a temporary place of residence and work out from such place.
In February, March and April, 1957, Woodruff lived, with his wife, children, and other members of the family, in Ruffin, N. C. Banell Small, a brother of Woodruff's wife, then a 14-year old boy, lived as a member of this family group. About May 1, 1957, Woodruff moved from Ruffin to Morristown, Tennessee.
Plaintiff's evidence as to what occurred prior to and on the occasion of the fatal accident consists of the testimony of Banell Small.
Banell Small testified that he was with Woodruff when the 1957 truck was delivered in Danville; that he helped Woodruff in his work when he operated out from Ruffin and later when he operated out from Morristown; that he was with Woodruff on April 17, 1957, when the truck was taken to Lucky City Motors, Inc., in Reidsville, to have the brakes fixed; and that he was with Woodruff in Marshall, N. C., *306 on June 13, 1957, when the fatal accident occurred. Banell Small's testimony also tends to show the facts stated in the following two numbered paragraphs.
1. On June 13, 1957, Woodruff, driving the 1957 truck and accompanied by Banell Small, left Morristown for Marshall. In Marshall, about noon, they went to the house of one Everett Barnett. In so doing, they traveled (north) up a mountain road (ten or eleven feet wide), referred to as Hill Street. Barnett's private driveway ("just room enough for one vehicle") extended (east) from Hill Street, down the mountain. The grade on Hill Street and on Barnett's driveway was steep. On the west side of Hill Street, opposite the entrance to the Barnett driveway, there was a bank, that is, the side of the mountain.
2. In leaving the Barnett house, Woodruff drove up the driveway and onto and across Hill Street. He stopped when the front bumper hit the bank on the far (west) side, being unable to make the turn into Hill Street without backing. When the truck was still in "low, low gear," with the engine running, it started to roll back toward the east edge of Hill Street. When this occurred, Woodruff "stomped" the brakes. The brakes "froze" and failed to take effect. The truck rolled back over the east edge of Hill Street, down the side of the mountain toward the Barnett house, turned over and fell against an apple tree, and Woodruff was "pinned in" in such manner as to cause his death.
On this phase of the case, we must conclude that plaintiff's evidence was sufficient to require submission for jury determination whether the failure of the brakes proximately caused the fatal accident.
After the fatal accident, the Woodruff truck was removed to the warehouse of Service Motor Sales in Marshall. There was evidence that nothing was done to the truck in respect of brakes or otherwise prior to July 29th, the date the truck was sold to Mr. Derwood Trent of Morristown. Trent drove the Woodruff truck from Marshall to Morristown. As to what occurred on this trip, Trent testified: "I found if I would hit the brake real suddenly I had no brake at all, just like a hard pedal that wouldn't release at all. If I released the pedal gradually, applied small pressure on it, it would depress. In other words, I mean if you stamped them all of a sudden, the pedal would stay firm and not depress. If you applied the brakes gradually, you had a brake."
There was testimony by Trent and by John Self, Trent's mechanic, as to tests made in respect of the brakes on the Woodruff truck. In short, their testimony tended to show that the master (brake) cylinder assembly was defective in that it contained a "one-piece" check valve instead of the "two-piece" check valve called for by the 1957 Ford Manual. Their testimony tended to show that, after purchasing a 1957 brake assembly "kit" from the Ford dealer in Morristown, they replaced the "one-piece" check valve with a "two-piece" check valve and after doing so the hydraulic brakes worked perfectly. According to their testimony, when the "one-piece" check valve was used, the brake would operate satisfactorily if gradually applied but "on sudden application" the outlet for the brake fluid would completely close and the fluid would not reach the brake cylinders in the wheels of the truck.
On this phase of the case, we must conclude that there was evidence sufficient to support findings that the master cylinder assembly in Woodruff's truck on June 13, 1957, contained a "one-piece" check valve, and that this "one-piece" check valve rendered the brakes inoperative if the driver suddenly applied or "stomped" the brakes. In this connection, it is noted that the evidence offered by Lucky City Motors, Inc., tends to show that a master cylinder assembly for a 1957 truck should have a "two-piece" check valve as one of its component parts.
*307 The question arises: Did the master cylinder assembly in Woodruff's 1957 truck contain a "one-piece" check valve when delivered by Ford Motor Company to the Danville dealer from whom it was purchased by Woodruff? To answer this question, we consider the evidence as to what occurred prior to and on April 17th, the date Woodruff took the truck to Lucky City Motors, Inc., to have the brakes fixed. As to this, the testimony of Banell Small and the testimony of James V. Lassiter, Jr., then the Service Manager for Lucky City Motors, Inc., a witness for Lucky City Motors, Inc., is in conflict, particularly with reference to what was wrong with the brakes when Woodruff took the truck to Lucky City Motors, Inc., on April 17th.
Banell Small testified: "In between the time that the new Ford truck was delivered to him (Woodruff) and April 17, when you hit the brakes real hard, they would freeze, wouldn't go down; like you'd be going along and hit them suddenly, they just wouldn't stop, wouldn't hold at all, just freeze." This was first noticed, according to Banell Small, a week or so after the 1957 truck was delivered to Woodruff, when, approaching a red light, Woodruff "stomped on the brakes" and they just "went right on." According to Banell Small, when the truck was taken to Lucky City Motors, Inc., on April 17th, Woodruff "told them how the brakes was acting, how when he hit it they wouldn't hold, would just freeze, and stuff like that."
On the other hand, Lassiter testified that Woodruff's complaint on April 17th was: "My brakes are locking up; I can't drive it on the road." Lassiter testified: "The brakes was locking up. He had too much brakes; he couldn't drive it. * * * After getting in it I tried the brakes and it would not move without putting it in low gear and barely moved then. * * * He said in applying the brakes they seemed to get tighter and tighter until it stopped."
As to what was done by Lucky City Motors, Inc., on April 17th, Banell Small testified: "He (the mechanic) took the master cylinder off, the brake thing and tore it down." Again: He "* * * tore the master cylinder, fixed a part and put it back on, and we drove on out with it." Again: "I don't know what they put in it or what they didn't." Lassiter's testimony was to the effect that Woodruff's use of improper brake fluid had caused the damage to certain component parts of the brake assembly; and that, among other repairs and replacements, he removed a "two-piece" check valve from the brake assembly and replaced it with another "two-piece" check valve.
True, if Lassiter's testimony is accepted, the "one-piece" check valve in Woodruff's truck on June 13, 1957, was put there by some person and on some occasion not disclosed by the evidence. Indeed, Lucky City Motors, Inc., offered a witness who testified that on June 13, 1957, in Marshall, Woodruff's truck had defective brakes; and that, when the witness cautioned Woodruff to have the brakes fixed, Woodruff replied that he had "had these brakes worked on two or three times." Yet Banell Small testified that Woodruff had had no trouble with the brakes from April 17th to June 13th; that he had been with him constantly on all occasions when Woodruff had driven the truck; and that no work had been done on the brakes by anybody after April 17th.
Appellee contends: If a "one-piece" check valve was in the brake assembly on June 13, 1957, and if nothing had been done to the brakes from April 17th to June 13th, the only inference to be drawn is that the "one-piece" check valve was put in the brake assembly by Lucky City Motors, Inc. It is noted that this contention runs counter to the testimony of Lassiter. The jury was at liberty to accept or to reject, in whole or in part, Lassiter's testimony. Whether Lassiter removed a "two-piece" check valve from the brake assembly was for jury determination.
If the evidence most favorable to plaintiff is accepted, the brake failure on *308 June 13th was precisely the same in character as the brake failures prior to April 17th, and the cause of the brake failure on June 13th was the fact that a "one-piece" check valve instead of the "two-piece" check valve was a component part of the brake assembly. When all inferences are drawn in favor of plaintiff, the evidence was sufficient to permit a finding that the "one-piece" check valve in the brake assembly on June 13th was in the brake assembly when the 1957 truck purchased by Woodruff was delivered by the manufacturer to its dealer in Danville.
Even so, appellee contends the original liability of Ford Motor Company, if any, ended upon discovery of the defect prior to April 17th; and that, with knowledge of such defect, Woodruff had the truck inspected and repaired by Lucky City Motors, Inc. Here, appellee relies largely upon Harley v. General Motors Corp., 97 Ga.App. 348, 103 S.E.2d 191, 194, where it is said: "In the instant case, the plaintiff's father discovered the defective condition of the accelerator rod before it had caused any injury and at the discovery thereof, the defective condition of the accelerator rod ceased to be a latent defect. Once the defect was discovered and the dangerous condition of the defective machine became apparent, that discovery insulated the manufacturer from any damages resulting from its manufacture of a latently defective machine." Suffice to say, if the brake assembly placed in the 1957 truck by Ford Motor Company contained a "one-piece" check valve, we cannot say as a matter of law that the mere fact that Woodruff discovered (prior to April 17th) that his brakes were not working satisfactorily is sufficient to absolve Ford Motor Company from liability. There is no evidence that Woodruff had knowledge or notice that the malfunctioning of the brakes was caused by the presence, within the brake assembly, of a "one-piece" check valve. In short, the cause of the hazard was not obvious but concealed. Compare, Tyson v. Long Manufacturing Co., 249 N. C. 557, 107 S.E.2d 170.
Here the alleged negligence of Ford Motor Company was the use of a "one-piece" check valve as a component part of the brake assembly on Woodruff's 1957 truck. There was evidence that the brake assembly used on certain Ford trucks and cars for 1956 (models) and prior years contained a "one-piece" check valve.
This question arises: If Lucky City Motors, Inc., was negligent, either in its failure to discover or to remedy the defect, did such negligence intervene and supersede the original negligence of Ford Motor Company? Without appraising the sufficiency of the evidence to establish negligence on the part of Lucky City Motors, Inc., it is enough to say it does not establish negligence on its part as a matter of law.
The doctrine of intervening (insulating) negligence has been discussed in many cases. For a full discussion, see Hayes v. City of Wilmington, 243 N.C. 525, 540, 91 S.E.2d 673, and cases cited. If, as manufactured by Ford Motor Company, the brake assembly had a "one-piece" check valve in it, and this was permitted to remain therein by Lucky City Motors, Inc., there was no break in the chain of causation set in motion by the negligence of Ford Motor Company. Too, we cannot say as a matter of law that Ford Motor Company could not have reasonably anticipated that a mechanic, undertaking to repair the brakes, would not permit to remain in the brake assembly a "one-piece" check valve put there by the manufacturer.
In Pierce v. Ford Motor Co., 4 Cir., 190 F.2d 910, 913, (Ford Motor Co. v. Mahone, 4 Cir., 205 F.2d 267), Parker, Chief Judge, said: "It is argued that any negligence of the manufacturer in turning out a defective car is insulated by that of a mechanic who inspects it afterwards so that *309 the latter will be deemed the proximate cause of any injury resulting from its defective condition; but this argument is entirely without merit. As said in Harper on Torts ch. 7 sec. 106, quoted in Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517, 529: `A negligent defendant cannot escape liability because of a failure on the part of some third person to perform an affirmative duty which, if properly performed, would have enabled the plaintiff to avoid the risk created by the defendant's negligence. The failure of the other to inspect adequately may make him liable to the party harmed, but it will not relieve the defendant whose negligence was responsible for the hazard in the first place.'"
Careful consideration of the evidence raises many doubts as to (1) whether the fatal accident was caused by failure of brakes or by backing off the edge of the mountain road, (2) whether the alleged defect was not of such nature that Woodruff, in his extensive travels, became fully aware thereof between April 17th and June 13th, and (3) whether Woodruff had not had the brakes worked on on one or more occasions after April 17th at times and under circumstances not disclosed by the evidence. But a decision adverse to plaintiff would require that we weigh the evidence, particularly the testimony of Banell Small. The credibility of the witnesses and the weight of the evidence are for jury determination.
As to contributory negligence, it is enough to say that the evidence does not suffice to establish contributory negligence on the part of Woodruff as a matter of law.
We do not reach the question as to whether the evidence was sufficient to support a finding that Ford Motor Company was liable for the negligence, if any, of Lucky City Motors, Inc., under the doctrine respondeat superior.
Under the circumstances disclosed by the record, we refrain from comment on the present status of the action as between plaintiff and Lucky City Motors, Inc.
The judgment of involuntary nonsuit as to Ford Motor Company is reversed.
Reversed.
