Griffin v. Blankenship

• Decision Date: 26 March 1958
• Docket Number: No. 247,247
• Parties: J. W. GRIFFIN v. A. V. BLANKENSHIP, trading as A. V. Blankenship Engineering Company, and Ernest B. Wilson.
• Court: North Carolina Supreme Court

Page 451

102 S.E.2d 451

248 N.C. 81

J. W. GRIFFIN v. A. V. BLANKENSHIP, trading as A. V. Blankenship Engineering Company, and Ernest B. Wilson.

No. 247

Supreme Court of North Carolina.

March 26, 1958

Richard M. Welling, Charlotte, for plaintiff appellant.

Kennedy, Covington, Lobdell & Hickman, Eugene M. Anderson, Jr., Charlotte, for defendants appellee.

DENNY, Justice.

This appeal turns on whether or not the plaintiff's evidence, when considered in the light most favorable to him, as it must be when considering a motion for judgment as of nonsuit, is sufficient to carry the case to the jury on the question of actionable negligence. Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727; Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676; Hughes v. Thayer, 229 N.C.773, 51 S.E.2d 488; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209.

The plaintiff devotes a substantial part of his brief in arguing that the defendant operator of the bulldozer was not an employee of the plaintiff. Therefore, he contends that both the defendant operator and his employer, the owner of the equipment, are responsible to the plaintiff for the injuries he sustained, citing Hodge v. McGuire, 235 N.C. 132, 69 S.E.2d 227.

It is not necessary to determine whether the operator of Blankenship's bulldozer was an employee of the plaintiff or of Blankenship if the plaintiff's evidence is insufficient to establish actionable negligence against the defendant Wilson. 'Actionable negligence exists only where one whose acts occasion injury to another owes to the latter a duty created either by contract or by operation of law which he has failed to discharge. There must be an act or omission by which a legal duty or obligation to the complaining party is breached and there must be a causal connection between the breach of duty and the injury. ' Truelove v. Durham & Southern R. Co., 22 N.C. 704, 24 S.E.2d 537, 538.

The operator of the bulldozer, on the occasion involved herein, owed to the plaintiff the duty to exercise due care in the operation and manipulation of the bulldozer.

In Butler v. Allen, 233 N.C. 484, 64 S.E.2d 561, 563, this Court said: 'The due care required in fixing responsibility for negligence is the rule of the prudent man. The standard is always that care which a reasonably prudent man should exercise under the same or similar circumstances. * * *'

To recover damages for an injury, it is not only necessary to prove a negligent act but it is equally necessary to show by the greater weight of the evidence that such negligent act was the proximate cause or a proximate cause of the injury.

An integral factor necessary to constitute proximate cause is foreseeability. Cranfield v. City of Winston-Salem, 200 N.C. 680, 158 S.E. 241; McIntyre v. Monarch Elevator & Machine Co., 230 N.C. 539, 54 S.E.2d 45.

In the case of Osborne v. Atlantic Ice & Coal Co., 207 N.C. 545, 177 S.E. 796, 797, it is said: 'Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable negligence is a...