Garner v. Pittman

• Decision Date: 18 March 1953
• Docket Number: No. 233,233
• Citation: 75 S.E.2d 111,237 N.C. 328
• Parties: GARNER, v. PITTMAN et al.
• Court: North Carolina Supreme Court

Page 111

75 S.E.2d 111

237 N.C. 328

GARNER, v. PITTMAN et al.

No. 233

Supreme Court of North Carolina.

March 18, 1953

Wellons, Martin & Wellons, Smithfield, for plaintiff-appellant.

Shepard & Wood, Smithfield, for defendant Sipe, Appellee.

WINBORNE, Justice.

When the evidence offered by plaintiff upon the trial in Superior Court, as revealed by the record of case on appeal, is taken in the light most favorable to her, we are of opinion that the case comes within the principles enunciated in Smith v Sink, 211 N.C. 725, 192 S.E. 108; Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239, and Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361, and is insufficient to require that an issue of negligence as to defendant Sipe be submitted to the jury. All the evidence offered by plaintiff manifests that defendant Pittman was negligent. Indeed, the uncontradicted evidence is that he admitted that 'it was all his fault'. If defendant Sipe were negligent, it is clear that it was insulated by the negligence of Pittman, and that his, Pittman's, negligence was the sole proximate cause of the collision. This conclusion finds support in Harton v. Forest City Tel. Co., 146 N.c. 429, 59 S.E. 1022, 14 L.R.A.,N.S., 956, and other cases cited in Reeves v. Staley, supra, 220 N.C. at page 582, 18 S.E.2d 239.

In an action for recovery for injury to person or damage to property, resulting from alleged actionable negligence, the plaintiff must show: First, that there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed plaintiff under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury of damage, --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 result was probable under all the facts as they existed. See Ramsbottom v. Atlantic Coast Line R. Co., 138 N.C. 38, 50 S.E. 448; Whitt V. Rand, 187 N.C. 805, 123 S.E. 84, and numerous later cases.

And the principle prevails in this State that what is negligence is a question of law, and when the facts are admitted or established, the court must say whether it does or does not exist. 'This rule extends and applies not only to the question of negligent breach of duty, but also to the feature of proximate cause', Hoke J., in Hicks v. Naomi Falls Mfg. Co., 138 N.C. 319, 50 S.E. 703, 705, Reeves v. Staley, supra, and cases there cited.

In the case of Lineberry v. North Carolina R. Co., 187 N.C. 786, 123 S.E. 1, 4, in opinion by Clarkson, J., this Court said: 'It is well settled that, where the facts are all admitted, and only one inference may be drawn from them, the court will declare whether an act was the proximate cause of the injury or not. ' Again, in Russell v. Carolina Cent. R. Co., 118 N.C. 1098, 24 S.E. 512, 513, it is stated that 'Where the facts are undisputed, and but a single inference can be drawn from them, it is the exclusive duty of the court to determine whether an injury has been caused by the negligence of one or the concurrent negligence of both of the parties.'

Furthermore, it is proper in negligence cases to sustain a demurrer to the evidence and enter judgment as of nonsuit: '1. When all the evidence, taken in its most favorable light for the plaintiff, fails to show any actionable negligence on the part of the defendant. * * * 2. When it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person. * * ' Smith v. Sink, supra, and cases cited. See also Reeves v. Staley, supra, and cases cited. Also Mintz V. Murphy, 235 N.C, 304, 69 S.E.2d 849, and clark v. Lambreth, 235 N.C. 578, 70 S.E.2d 828.

'Foreseeability is the test of whether the intervening act is such a new, independent, and efficient cause as to insulate the original negligent act. That is to say, if the original wrongdoer could reasonably foresee the intervening act and resultant injury, then the sequence of events is not broken by a new and independent cause, and in such event the original wrongdoer remains liable', as expressed by Brogden, J., in Hinnant v. Atlantic Coast Line R. Co., 202 N.c. 489, 163 S.E. 555, 558. See Reeves v. Staley, supra, and cases cited.

Too, it is a rule of law even in the absence of statutory requirements, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. And in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highways. 5 Am.Jur., Automobiles, §§ 165, 166, 167.

Also it is provided by statute, G.S. § 20-156(a) that 'The driver of a vehicle entering a public highway from a private road or drive shall yield the right-of-way to all vehicles approaching on such public highway '. And in order to comply with this statute, the driver of such vehicle is required to look for vehicles approaching on such public highway, and this 'is required to be done at a time when his precaution may be effective', as expressed by Stacy, C. J., in Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598, 601, citing cases.

Likewise, in Matheny v. Central Motor Lines, supra, [233 N.C. 673, 65 S.E.2d 366]...