Fleming v. Twiggs

• Decision Date: 31 October 1956
• Docket Number: No. 319,319
• Citation: 244 N.C. 666,94 S.E.2d 821
• Court: North Carolina Supreme Court
• Parties: Minnie FLEMING, Administratrix of the Estate of Jessie M. Fleming, v. James Vaughn TWIGGS and Rosetta Kilpatrick Twiggs.

Page 821

94 S.E.2d 821

244 N.C. 666

Minnie FLEMING, Administratrix of the Estate of Jessie M. Fleming, v. James Vaughn TWIGGS and Rosetta Kilpatrick Twiggs.

No. 319

Supreme Court of North Carolina.

Oct. 31, 1956

Harkins, Van Winkle, Walton & Buck, Asheville, for defendants, appellants.

McLean, Gudger, Elmore & Martin, Asheville, for plaintiff, appellee.

HIGGINS, Justice.

The defendant made timely motions for judgment of nonsuit and assigned as error the refusal of the court to allow them. The motions raised two questions: First, was the evidence sufficient to go to the jury on the issue of negligence? And, second, if so, did the evidence show that Jessie Fleming was guilty of contributory negligence as a matter of law?

'Negligence is not to be presumed from the mere fact that an accident has occurred. ' Merrell v. Kindley, 244 N.C. 118, 92 S.E.2d 671, 672. 'It is appropriate to say that no inference of negligence arises from the mere fact of an accident or injury '. Adams v. Beaty Service Co., 237 N.C. 136, 74 S.E.2d 332, 337. 'Negligence is not presumed from the mere fact of injury or that the intestate was killed. ' Whitson v. Frances, 240 N.C. 733, 83 S.E.2d 879; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661, 663; Ray v. Post, 224 N.C. 665, 32 S.E.2d 168; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406; Pack v. Auman, 220 N.C. 704, 18 S.E.2d 247. 'In order to establish * * * actionable negligence * * * the plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances under which they were placed; and second, that such negligent breach of duty was the proximate cause of the injury--a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed. ' Whitt v. Rand, 187 N.C. 805, 123 S.E. 84, 85. 'There must be legal evidence of every material fact necessary to support the verdict and the verdict must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.' 23 C.J. 52; Shuford v. Scruggs, 201 N.C. 685, 161 S.E. 315; Denny v. Snow, 199 N.C. 773, 155 S.E. 874. See also, 32 C.J.S., Evidence § 1042. 'If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed. Whether there is enough evidence to support a material issue is a matter of law. ' Mills v. Moore, supra [219 N.C. 25, 12 S.E.2d 664].

Measured by the foregoing rules, was there enough evidence, when taken in the light most favorable to the plaintiff, to go to the jury on the issue of negligence? We may eliminate as without probative force the statement of Mrs. Blulah Fleming that Twiggs was traveling 70 miles per hour. The facts and circumstances detailed by her clearly indicate lack of opportunity on her part to form such opinion of speed as would amount to evidence. Mr. Fleming was walking across the road behind the car in which she was sitting. She did not look to the rear until she heard tires as the brakes were applied. She looked back, saw Mr. Fleming in the middle of the road and the car seven or nine feet, or half the length of the courtroom behind the Fleming car. She looked away before the impact. "Where a witness has had no reasonable opportunity to judge the speed of an automobile, it is error to permit him to testify in regard thereto' '. State v. Becker, 241 N.C. 321, 85 S.E.2d 327, 331, citing Annotation 70 A.L.R. 547; Annotation 94 A.L. R. 1192; Davidson v. Beacon Hill Taxi Service, 278 Mass. 540, 180 N.E. 503, 504.

The following is a quotation from the Davidson case: 'The intervening time from when he first saw it [approaching car] until the plaintiff was struck could have been at most only a few seconds. During that time he was running to escape being struck. It is inconceivable that he could have had any intelligent opinion as to the speed of the taxicab in these circumstances. His estimate...