Etheridge v. Etheridge

Decision Date03 March 1943
Docket Number90.
Citation24 S.E.2d 477,222 N.C. 616
CourtNorth Carolina Supreme Court

Civil action in tort to recover damages for personal injuries.

On Sunday, 27 April, 1941, plaintiff and defendant, brothers were returning to Whitakers, N.C., from Bellamy's Mill in an automobile owned and operated by defendant. Defendant was driving about 35 miles per hour on a dirt road. As they approached an intersection or fork in the road defendant passed another vehicle going about 20 miles per hour. "He swerved around that car and ran into that intersection and lost control of the car and ran in the ditch (on the right) and the car turned over. He crossed the intersection and was making the bend to the left and the speed he couldn't make it and hit the bank on the right side. After you crossed the intersection the road curves to the left." The car ran into the drain ditch and turned over. Plaintiff suffered substantial injuries.

Defendant passed the car before reaching the intersection and the car turned over 100 to 150 feet beyond the intersection. It was dusty at the time.

Defendant offered evidence tending to show that as he crossed intersection his car hit a "kinder" bump, went to the right and stayed on the right-hand side until the accident occurred. He tried to turn back to the middle of the road but could not. He does not know why. He applied his brakes "but they did not seem to take hold." There was judgment of non-suit and plaintiff appealed.

O.B. Moss, of Spring Hope, and Ben H. Neville, of Whitakers, for plaintiff, appellant.

Battle Winslow & Merrell, of Rocky Mount, for defendant appellee.


On this record the testimony tending to show that the accident occurred near an intersection is immaterial. Statutory regulation of speed at intersections has for its purpose the protection of those who are in, entering, or about to enter, the intersecting highway. Sec. 103, Ch. 407, P.L.1937. This accident occurred some distance from the intersection. While the defendant's speed is a circumstance to be considered, that he may or may not have been exceeding the limit prescribed for intersections has no causal connection with the subsequent occurrence.

Nor is there any evidence that the dust interfered with the vision of defendant. He passed the other car in order to avoid its inconvenience. This evidence, except as one of several circumstances, does not tend to show negligence.

Is there, then, any sufficient evidence of want of due care, requiring the submission of the cause to a jury?

The statute prohibits the operation of a motor vehicle without due caution and circumspection or at a speed or in a manner so as to endanger or be likely to endanger, any person or property, section 102, Ch. 407, P.L.1937, or at a speed greater than is reasonable and prudent under the conditions then existing. Sec. 103, Ch. 407, P.L.1937. Plaintiff's complaint, liberally construed, alleges a violation of these provisions of our Motor Vehicle Law. We are constrained to hold that he has offered evidence tending to support the allegation.

Generally, a defendant's negligence will not be presumed from the mere happening of an accident, but, on the contrary, in the absence of evidence on the question, freedom from negligence will be presumed. Even so, "it has never been suggested that evidence of negligence should be direct and positive. In the nature of the case, the plaintiff must labor under difficulties in proving the fact of negligence, and, as that fact is always a relative one, it is susceptible of proof by evidence of circumstances bearing more or less directly on the fact of negligence--a kind of evidence which might not be satisfactory in other classes of cases open to clear proof." Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 136, 28 L.R.A.,N.S., 949.

Direct evidence of negligence is not required, but the same may be inferred from facts and attendant circumstances; and if the facts proved establish the more reasonable probability that the defendant has been guilty of actionable negligence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence. Fitzgerald v. Southern R. Co., 141 N.C. 530, 54 S.E. 391, 6 L.R.A.,N.S., 337; Dail v. Taylor, supra.

There are instances where this requirement is met by simply proving the occurrence and the resulting injury. "Though mere accident is not proof of negligence, some accompanying elemental facts may, under ruling by the court, afford room for the jury to infer that the negligence of the defendant caused the injury." Chaisson v. Williams, 130 Me. 341, 156 A. 154, 157.

Hence, this rule has been formulated and generally followed: When a thing which caused an injury is shown to be under the control and operation of the party charged with negligence and the accident is one which, in the ordinary course of things, will not happen if those who have such control and operation use proper care, the accident itself, in the absence of an explanation by the party charged, affords some evidence that it arose from want of proper care. 9 Blashfield, Cyclopedia of Automobile Law and Practice, Part 2, Perm.Ed., § 6043, p. 306; Shearman & Redfield, Negligence (4d), sec. 59; Jaggard, Torts, 938; Roberts v. Economy Cabs, 285 Ill.App. 424, 2 N.E.2d 128; Smith v. Kirby, 115 N.J.L. 225, 178 A. 739; Morrow v. Hume, 131 Ohio St. 319, 3 N.E.2d 39; Zwick v. Zwick, 29 Ohio App. 522, 163 N.E. 917; Howard v. Texas Co., 205 N.C. 20, 169 S.E. 832; Annotation, 64 A.L.R. 255; Feldman v. Chicago Railways Co., 289 Ill. 525, 124 N.E. 334, 6 A.L.R. 1291.

The rule permits the jury, but not the court, to draw an inference of negligence. In other words, it is a circumstance from which the jury may, but is not compelled to, infer a want of due care. Howard v. Texas Company, supra; Hinnant v. Tidewater Power Company, 187 N.C. 288, 121 S.E. 540. The inference, sometimes referred to as a presumption, yields to contrary proof--the weight of the inference as well as the weight of the explanation offered to meet it (when in dispute) being for the jury. Scovanner v. Toelke, 119 Ohio St. 256, 163 N.E. 493; Blashfield, supra, § 6043, p. 303.

The rule has found limited application in automobile cases. It applies when the accident is one which does not happen in the ordinary course of events where reasonable care is used, Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464, 49 A.L.R. 589, and the cause of the accident or the loss of control resulting in the accident, such as an obstruction in the road, a flat tire, or skidding, does not affirmatively appear.

It does not apply where the evidence discloses that the injury might have occurred by reason of the concurrent negligence of two or more persons, or that the accident might have happened as a result of one or more causes, or where the facts will permit an inference that it was due to a cause other than defendant's negligence as reasonably as that it was due to the negligence of the defendant, or where the supervening cause is disclosed as a positive fact--and skidding, Springs v. Doll, 197 N.C. 240, 148 S.E. 251; Annotation, 64 A.L.R. 261, or a puncture or blowout, Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11; Giddings v. Honan, 114 Conn. 473, 159 A. 271, 79 A.L.R. 1215; Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562, is such fact. Blashfield, supra, § 6046. When the supervening cause appears as an affirmative fact it never applies. No inference of negligence then arises from the fact of accident or injury.

As stated by Brogden, J., in Springs v. Doll, supra [197 N.C. 240, 148 S.E. 252], it does not apply "(1) when all the facts causing the accident are known and testified to by the witnesses at the trial, Baldwin v. Smitherman, 171 N.C. 772, 88 S.E. 854; Orr v. Rumbough, 172 N.C. 754, 90 S.E. 911; Enloe v. [ Southern] R. Co., 179 N.C. 83, 101 S.E. 556; (2) where more than one inference can be drawn from the evidence as to the cause of the injury, Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464, 49 A.L.R. 589; (3) where the existence of negligent default is not the more reasonable probability, and where the proof of the occurrence, without more, leaves the matter resting only in conjecture, Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.,N.S., 949; (4) where it appears that the accident was due to a cause beyond the control of the defendant, such as the act of God or the wrongful or tortious act of a stranger, Heffter v. Northern States Power Co., 173 Minn. 215, 217 N.W. 102, 25 A.L.R. 713, note [II, subd.] 2; (5) when the instrumentality causing the injury is not under the exclusive control or management of the defendant, Saunders v. [ Norfolk & W.] R. Co., 185 N.C. 289, 117 S.E. 4, 29 A.L.R. 1258; (6) where the injury results from accident as defined and contemplated by law."

Applying the rule in Baker v. Baker, 220 Ala. 201, 124 So. 740, 742, the court said: "In the absence of obstructions, defect in the road or car, or other supervening cause, the wreck of a car under the circumstances disclosed [[[overturned on curve] readily warrants an inference of negligence in operation."

In Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471, it was held that the inference of negligence is from the fact that the automobile is driven in such manner and with such lack of control that it leaves the proper part of highway safe for travel and encounters or creates dangers to persons, whether such persons are occupying the automobile or are near or along the highway.

In Nassar v. Interstate Motor Freight System, 58 Ohio App. 443, 16 N.E.2d 832, the court concluded that where the evidence discloses that a truck, without coming in contact with any obstacle, left the highway and plunged into a creek and the cause...

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