Hurt v. Western Carolina Power Co

• Citation: 140 S.E. 730
• Decision Date: 14 December 1927
• Docket Number: (No. 537.)
• Court: United States State Supreme Court of North Carolina
• Parties: HURT. v. WESTERN CAROLINA POWER CO. et al.

140 S.E. 730

(194 N. C. 626)

HURT.

v.WESTERN CAROLINA POWER CO. et al.

(No. 537.)

Supreme Court of North Carolina.

Dec. 14, 1927.

Appeal from Superior Court, McDowell County; Moore, Judge.

Action by Walter Hurt, by next friend, S. A. Hurt, against the Western Carolina Power Company and another. Judgment for plaintiff, and defendants appeal. New trial ordered.

Civil action (companion suit to Godfrey v. Power Co., 190 N. C. 24, 128 S. E. 485) to recover damages for an alleged negligent injury to plaintiff, a minor 17 years of age, resulting in sickness. loss of time, diminished earning capacity, expenses, etc., caused by the negligent manner, so plaintiff alleges, in which the defendants have constructed their dams, waterworks, and hydroelectric power plant along the Catawba river near the vicinity of plaintiff's home, diverting and ponding the waters of said river and leaving them in such negligent condition as to cause the breeding of anopheles mosquitoes and the spread of malaria and sickness to the inhabitants, including the plaintiff, throughout the surrounding territory.

Upon denial of liability and issues joined, the jury returned the following verdict:

"(1) Was plaintiff injured by the negligent conduct of the defendant as alleged in the complaint? A. Yes.

"(2) What damage, if any, is plaintiff entitled to recover? A. $1,000."

From a judgment on the verdict in favor of plaintiff, the defendants appeal, assigning errors.

Hudgins, Watson & Washburn and Pless, Winborne, Pless & Proctor, all of Marion, W. S. O'B. Robinson. Jr., of Charlotte, and J. H. Marion, of Chester, S. C, for appellants.

Morgan & Ragland, of Marion, for appellee.

STACY, C. J. The validity of the trial is called in question by numerous exceptions and assignments of error, but we shall not consider them seriatim, as it is necessary to award a new trial for errors in the charge on the issues of negligence and damages.

With respect to the liability of the defendants for plaintiff's injuries, the following excerpt from the court's charge to the jury constitutes one of defendants' exceptive assignments of error:

"Now, if you find, gentlemen of the jury, by the greater weight of the evidence, that they (the defendants) did create malaria bearing mosquitoes by reason of the impounding of the water in this way that breeded and was capable of breeding and did breed malaria bearing mosquitoes, why then, if you find that by the greater weight of the evidence, they (the defendants) would be guilty of negligence."

The vice of this instruction lies in the fact that it makes no reference to proximate cause. One may be ever so negligent, but, unless such negligence proximately produces injury to another, no action for damages may be maintained therefor. Drum v. Miller, 135 N. C. 204, 47 S. E. 421, 65 L. R. A. 890, 102 Am. St. Rep. 528. In other words, to constitute actionable negligence, there must be both negligence, or a breach of some legal duty, and injury proximately resulting therefrom.

Speaking to the question in Ramsbottom v. Atlantic Coast Line R. Co., 138 N. C. 39, 50 S. E. 448, 449, Hoke, J., delivering the opinion of the court, said:

"To establish actionable negligence, the question of contributory negligence being out of the case, the plaintiff is required to show by the greater weight of the testimony, first, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiffs under the circumstances in which they were placed, proper care being that degree of care which a prudent man should use under like circumstances and charged with like duty; and, second,...