Osborne v. Atl. Ice & Coal Co. Inc., 669.

Decision Date01 January 1935
Docket NumberNo. 669.,669.
Citation207 N.C. 545,177 S.E. 796
CourtNorth Carolina Supreme Court
PartiesOSBORNE. v. ATLANTIC ICE & COAL CO., Inc. (two cases).

Appeal from Superior Court, Davidson County; Clement, Judge.

Actions by James Osborne, by his next friend, M. A. Osborne, and by M. A. Osborne, against the Atlantic Ice & Coal Company, Incorporated, which were consolidated for purposes of trial. From judgments of nonsuit, the plaintiffs appeal.

Affirmed.

Spruill & Olive, of Lexington, for appellants.

Don A. Walser, of Lexington, and Linn & Linn, of Salisbury, for appellee.

PER CURIAM.

The minor plaintiff by his next friend instituted an action for personal injuries alleged to have been inflicted upon him by the negligence of the servant of the defendant company. The father of the minor plaintiff instituted suit to recover for the loss of services of his son. The two cases were consolidated for the purposes of trial.

Construing the evidence most favorably to the plaintiffs, it appears that the defendant's servant was driving a truck loaded with ice in the business of his master. The driver, overtaking the minor plaintiff, a lad seven years old, on the highway, called to him and asked him if he wanted to ride, and the plaintiff replied that he did. Whereupon the driver applied the brakes of the truck, which slowed down but went beyond the plaintiff before stopping. As it slowed down and went past him, the plaintiff jumped on the moving truck, catching hold of the door, and, as he did so, fell or was thrown from the truck and injured. The brakes of the car were defective, and the car went some fifteen feet before stopping after the boy had fallen.

Persons are held liable by the law for the consequences of their acts, which they can and should foresee, and by reasonable care and prudence guard against The act of the minor plaintiff in jumping upon and falling from the moving car was not such as the defendant in the exercise of due care could have reasonably foreseen, and to make such a requirement of it would, in the language of Brogden, J., in Gant v. Gant, 197 N. C. 164, 148 S. E. 34, 35, "practically stretch foresight into omniscience. The law does not require omniscience." The law only re-quires reasonable foresight, and when the injury complained of is not reasonably foreseeable, in the exercise of due care, the party whose conduct is under investigation is not answerable therefor. Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite...

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62 cases
  • Tyndall v. United States, Civ. A. No. 1294-1298.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • 15 Enero 1969
    ...proximate cause is the foreseeability of the injury. Pinyan v. Settle, 263 N.C. 578, 139 S.E.2d 863 (1965); Osborne v. Atlantic Ice & Coal Co., 207 N.C. 545, 177 S.E. 796 (1935). Whether the intervening act of a third person is itself the proximate cause of the injury and sufficient to excu......
  • Puffer v. Hub Cigar Store, 10676
    • United States
    • West Virginia Supreme Court
    • 26 Octubre 1954
    ...and actionable negligence is a requisite for recovery in an action for personal injury negligently inflicted.' Osborne v. Atlantic Ice & Coal Company, 207 N.C. 545 8. 'Where in a trial of an action at law before a jury, the verdict returned is without evidence to support it, or is plainly w......
  • Mcintyre v. Monarch Elevator &mach. Co
    • United States
    • North Carolina Supreme Court
    • 16 Junio 1949
    ...therefrom were such as could and should have been foreseen and by reasonable care and prudence guarded against. Osborne v. Atlantic Ice & Coal Co, 207 N.C. 545, 177 S.E. 796. It must be made to appear that the injury was the natural and probable consequence of the negligent act and ought to......
  • Hartley v. Crede
    • United States
    • West Virginia Supreme Court
    • 1 Octubre 1954
    ...In the recent case of Wilson v. Edwards, W.Va., 77 S.E.2d 164, this Court used this quotation from the case of Osborne v. Atlantic Ice & Coal Company, 207 N.C. 545, 177 S.E. 796: 'The law only requires reasonable foresight, and when the injury complained of is not reasonably foreseeable, in......
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