Jackson v. Neill McKay Gin Co., 739

• Decision Date: 16 June 1961
• Docket Number: No. 739,739
• Citation: 255 N.C. 194,120 S.E.2d 540
• Court: North Carolina Supreme Court
• Parties: Legette JACKSON v. NEILL McKAY GIN COMPANY.

Page 540

120 S.E.2d 540

255 N.C. 194

Legette JACKSON v. NEILL McKAY GIN COMPANY.

No. 739.

Supreme Court of North Carolina.

June 16, 1961.

King & Cox, Laurinburg, for plaintiff appellant.

Mason & Williamson, Laurinburg, for defendant appellee.

WINBORNE, Chief Justice.

The only question presented for decision is whether or not the Superior Court committed error in granting defendant's motion for judgment of nonsuit at the close of plaintiff's evidence.

Taking the evidence offered by the plaintiff, as shown in the record of case on appeal, in the light most favorable to the plaintiff, giving to him the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, as is done in such cases, a negative answer is deemed proper. Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Heuay v. Halifax Construction Co., 254 N.C. 252, 118 S.E.2d 615.

The plaintiff first alleges and contends that the equipment was defective in that the hooks would not properly hold the cotton as it was being lifted. However, there is no evidence in the record that the equipment in question was defective in any way on the date here involved. Indeed, all the evidence presented by the plaintiff is to the effect that the equipment was in good condition.

The operator of the equipment, James W. McLean, testified that 'There was nothing wrong with the machine.' He further testified that nothing was wrong with the hooks that day. William James McPhatter and W. G. Buie III, both of whom were familiar with the equipment, also testified that there was nothing wrong with it.

In order to establish actionable negligence, plaintiff must show that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed to the plaintiff under the circumstances in which they were placed, and that such negligence 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 result was probable under all the facts as they existed. Heuay v. Halifax Construction Co., supra. And when the plaintiff relies upon circumstantial evidence, he must establish negligence and proximate cause as a reasonable inference from the facts proved and not circumstances which raise a mere conjecture or surmise. Lane v. Dorney, 250 N.C. 15, 108 S.E.2d 55.

Negligence is not presumed from the mere fact of injury. The plaintiff is required to offer legal evidence tending to establish beyond a mere speculation or conjecture every essential element of negligence, and upon failure to do so, nonsuit is proper. And in this connection, whether or not there is enough evidence to support a material issue is a question of law. Heuay v. Halifax Construction Co., supra.

The plaintiff's evidence does show that other bales of cotton had fallen from this equipment at other times, but upon the record in the present case there is no evidence that connects the falling of the cotton on October 3, 1958 (date of the injury complained of herein), and any other time with any defective condition of the defendant's equipment.

The doctrine of res ipsa loquitur is...