Dunn v. Bomberger

• Decision Date: 02 March 1938
• Docket Number: 102.
• Citation: Dunn v. Bomberger, 213 N.C. 172, 195 S.E. 364 (N.C. 1938)
• Parties: DUNN v. BOMBERGER.
• Court: North Carolina Supreme Court

195 S.E. 364

213 N.C. 172

DUNN v. BOMBERGER.

No. 102.

Supreme Court of North Carolina

March 2, 1938

Appeal from Superior Court, Buncombe County; A. Hall Johnston Judge.

Action by Annie Dunn, administratrix of the estate of Arthur Dunn deceased, against H. E. Bomberger, to recover damages for the alleged wrongful death of plaintiff's intestate.A demurrer to the complaint was sustained by the judge of the county court, and plaintiff appealed to the superior court which remanded the cause for a trial on the merits, and defendant appeals.

Judgment of superior court reversed.

To establish actionable negligence the plaintiff must show that the defendant, in the exercise of ordinary care, could foresee that some injury would result from defendant's alleged negligent act.

This is a civil action instituted in the General countycourt of Buncombe county to recover damages for the alleged wrongful death of plaintiff's intestate.

The plaintiff alleges in her complaint that the defendant is the owner of a tract of land near Oteen, N. C., abutting on highway No. 10; that the said defendant, before the date of plaintiff's intestate's death, constructed and at the time aforesaid was maintaining a drain pipe from the defendant's residence under and near the top of the ground along the defendant's lot for the purpose of draining waste water discharged from a private laundry and otherwise, and that the waste water from said drain pipe was discharged upon the defendant's land under the surface of the ground, which, in the event of excavation, constituted a hidden danger and a defect to the defendant's land; that said discharge of water from the said drain saturated and softened the defendant's land, causing same to become soft and porous and not capable of self-support.She further alleges:

"4.That the State Highway Commission of North Carolina was improving State Highway #10 by widening said highway along the front of the defendant's land, and in the process of so doing were removing or causing to be removed a part of the lands of the defendant by excavation, and while so excavating said lands, as aforesaid, and while plaintiff's intestate was engaged in the discharge of his duty, assisting in said excavation, without warning or fault or notice on the part of the plaintiff's intestate, the bank adjoining said excavation suddenly gave way, caved in and fell upon and killed plaintiff's intestate, or caused his death in a short time after his injury, all the result of the defendant's negligence, as hereinafter and hereinbefore alleged.

5.That the negligence of the defendant proximately resulting in the death of the plaintiff's intestate's death was: (a) That defendant had negligently buried under the surface of the said lot of land a drain-pipe, through which he discharged waste water from his residence and laundry therein, thereby causing his said lot of land to become saturated and softened to the extent that said land would not support itself in the event of excavation by said State Highway Commission in widening Highway #10, which fact of widening said highway the defendant knew the said Highway Commission was engaged in doing at the time of the plaintiff's intestate's death.

(b) That the defendant negligently failed and neglected to warn said State Highway Commission and the plaintiff's intestate of the burial and use of said hidden, secret drain-pipe, when the defendant knew that said excavation was being done, or was to be done, and further negligent in that he, the defendant, negligently failed to warn said State Highway Commission and the plaintiff's intestate that the ground in proximity to the discharge and of said drain-pipe was saturated and softened and in such condition as to cave in while the excavation was being made; all such facts were known to the defendant, or by the exercise of reasonable care could have been known by the defendant.

(c) That the defendant negligently failed to instruct his agents or tenants to discontinue the use of said secret and hidden drain-pipe for the discharge of waste water, after the defendant knew, or by the exercise of reasonable care could have known that the excavation of his said land was in progress and, when he knew, or should have known, that the ground in close proximity to the discharge end of said drain-pipe was softened by saturation of said waste water and would cave in and injure or kill plaintiff's intestate or other laborers working on said excavation.

6.That the negligence of the defendant, as herein alleged, was the proximate cause of the plaintiff's intestate's death and consequent injury and damage to the plaintiff.

7.That the plaintiff's intestate was 38 years of age, was in robust and good health at the time of his death and was earning $ ------- per day and was physically in condition to pursue his vocation as a laborer for many years; also, plaintiff's intestate was a constant worker, was economical and frugal in his habits and worked consistently and the plaintiff avers that by reason of the premises and the tortious, wrongful and negligent acts of the defendant, as here alleged, the plaintiff has been damaged in the sum of $10,000.00"

The defendant demurred ore tenus to the complaint, for that the same does not state a cause of action.The demurrer was sustained by the judge of the county court, and the plaintiff appealed.When the cause came on to be heard in the superior court, the judgment of the county court sustaining the demurrer was held for error and the cause was remanded for a trial on the merits.To this judgment the defendant excepted and appealed.

George W. Craig and Edward N. Wright, both of Asheville, for appellant.

Smathers & Meekins, of Asheville, for appellee.

BARNHILL Justice.

Where the State Highway Commission, its contractors, or employees enter upon the premises of an individual under and by virtue of the power vested in the state by the provisions of the state highway statute, Code 1935, § 3573 et seq., those so entering upon the lands of another are licensees.There is no allegation in the complaint that any part of the lands of the defendant had been condemned.It is merely alleged that the State Highway Commission, in the process of widening state highway No. 10 adjacent to the lands of the defendant, entered upon the lands of the defendant and were removing, or causing to be...