Byrd v. Southern Express Co

• Citation: 51 S.E. 851, 139 N.C. 273
• Case Date: October 17, 1905
• Court: United States State Supreme Court of North Carolina

139 N.C. 273
51 S.E. 851

BYRD.
v.
SOUTHERN EXPRESS CO.

Supreme Court of North Carolina.

Oct. 17, 1905.

1. Negligence—Proximate Cause —Necessity of Establishment.

The fact that defendant has been guilty of negligence, and that such negligence has been followed by an injury, does not render defendant liable for such injury, unless the connection of cause and effect is established and defendant's negligent act is shown to have been the proximate cause of the injury.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 69.]

2. Same—Burden of Proof.

Plaintiff, in an action for death by wrongful act, has the burden of showing that defendant's negligence proximately caused the death of plaintiff's intestate.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 228.]

3. Same—Character of Proof Required.

Proof that defendant's negligence proximately caused the injury complained of must be of such a character as to reasonably warrant an inference of that fact, and it is not enough that it be merely sufficient to raise a surmise or conjecture as to its existence.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 273.]

4. Same—Evidence—Sufficiency.

In an action against an express company for negligently delaying the delivery of medicine intrusted to it for plaintiff's intestate, evideuce held insufficient to show that defendant's negligence was the proximate cause of the death of plaintiff's intestate.

5. Death — Actions — Damages Recoverable.

Under Code, § 1498, providing that whenever the death of a person is caused by a wrongful act of another, such as would have entitled the decedent to an action for damages had he lived, the person causing the death shall be liable to an action for damages by the administrator to the decedent, a father, who sues as his son's administrator to recover for the death of his son, is not entitled to recover damages for mental anguish, nor for the loss of the services of his son.

[Ed. Note.—For cases in point see vol. 15, Cent. Dig. Death, §§ 115, 118.]

Appeal from Superior Court, Cumberland County; Ferguson, Judge.

Action by Rufus Ryrd, administrator, etc., against the Southern Express Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Plaintiff sued to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant. The intestate, plaintiff's son, about 18 years old, was ill with typhoid fever at Wade, N. C, on September 11, 1903. His physician, early in the day, gave a prescription for him to a druggist at Fayetteville, who prepared the medicine and handed the package containing it to the agent of defendant company at that place, to be sent to Wade, a station on the railroad about 12 miles north of Fayetteville, where the plaintiff, with his family, resided. The package was received by defendant's agent about 55 minutes before the train was due to leave for Wade, and the agent was told that it was important to ship at once, as it contained medicine for a man who was sick. It was not forwarded that day, and plaintiff did not receive it until he came to Fayetteville the next morning and got it from the defendant. There was testimony, not necessary to be stated, which clearly shows that no contributory negligence was imputable to the plaintiff in not going to Fayetteville sooner than he did. The attending physician testified, in answer to a question as to the effect the delay in receiving the medicine had upon the patient, that the loss of time would necessarily cause a break "in the chain of treatment, " and would in his opinion lessen the chances of recovery; that he had an aggravated form of typhoid fever, and in such case it is required that the patient should have his medicine as regularly as possible. When asked whether, if the...