Lane v. Dorney
| Decision Date | 08 April 1959 |
| Docket Number | No. 595,595 |
| Court | North Carolina Supreme Court |
| Parties | Hazel M. LANE v. Jessle L. DORNEY, Executrix of the Estate of Herbert G. Dorney, deceased. V. Wilton LANE, Administrator c.t.a. of the Estate of Herbert S. Lane, deceased, v. Jessie L. DORNEY, Executrix of the Estate of Herbert G. Dorney, deceased. |
McLendon, Brim, Holderness & Brooks, Greensboro, for plaintiffs-appellants.
Jordan, Wright & Henson, Wharton & Wharton, Greensboro, for defendant-appellee.
This is the question involved on this appeal, as stated in brief of plaintiffs: Did the Superior Court commit error in granting defendants' motion for judgment of nonsuit at the close of the plaintiffs' evidence?
Taking the evidence offered by plaintiffs, as shown in the record of case on appeal, in the light most favorable to the plaintiffs, giving to them the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom as is done in considering demurrer to the evidence. G.S. § 1-183, a negative answer to this question is deemed proper.
In an action for recovery of damages for personal injury or for wrongful death from actionable negligence of defendant, plaintiffs must show: (1) 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 the plaintiffs under the circumstances in which they were placed; and (2) 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 result was probable under all the facts as they existed. Whitt v. Rand, 187 N.C. 805, 123 S.E. 84; Mintz v. Town of Murphy, 235 N.C. 304, 69 S.E.2d 849; Wall v. Trogdon, N.C., 107 S.E.2d 757, and cases cited.
Negligence is not presumed from the mere fact of injury or that testator was killed. Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661, and numerous later decisions in approval.
There must be legal evidence of every material fact necessary to support a 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. 51; 32 C.J.S. Evidence § 1042. Wall v. Trogdon, supra. 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.
Moreover, in Sowers v. Marley, 235 N.C. 607, 70 S.E.2d 670, 671, in opinion by Ervin, J., it is appropriately stated: 'In an action for death by wrongful act based on negligence, the burden rests on the plaintiff to produce evidence, either direct or circumstantial, sufficient to establish the two essential elements of actionable negligence, (deleting citations), namely: (1) That the defendant was guilty of a negligent act or omission; and (2) that such act or omission proximately caused the death of the decedent * * * To carry this burden by circumstantial evidence, the plaintiff must present facts which reasonably warrant the inference that the decedent was killed by the actionable negligence of the defendant * * * An inference of Negligence can not rest on conjecture or surmise * * * This is necessarily so because an inference is a permissible conclusion drawn by reason from a premise established by proof. * * *.'
Indeed, an accepted and sound rule of law and logic is that the facts from which an inference of negligence may be drawn must be proved, and cannot themselves be inferred or presumed from other facts which merely raise a conjecture or possibility of their existence. See 20 Am. Jur. Evidence, Sec. 165,--recognized with approval in the Sowers case.
And in Parker v. Wilson, 247 N.C. 47, 100 S.E.2d 258, 262, opinion by Parker, J., this principle is applied in this manner: 'When in a case like this, the plaintiff must rely on the physical facts, and other evidence, which is circumstantial in nature, to show that Donald Wilson was driving the automobile at the time of the wreck, he must establish attendant facts and circumstances which reasonably warrant such inference (citing cases). Such inference cannot rest on conjecture or surmise * * * 'The inferences contemplated by this rule are logical inferences reasonably sustained by the evidence when considered in the light most favorable to the plaintiff' * * * 'A cause of action must be something more than a guess' * * * A resort to a choice of possibilities is guesswork, not decision * * * To carry his case to the jury the plaintiff must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts.'
Testing plaintiffs' evidence by these principles in determining its sufficiency to show negligence of testate of defendant in the operation of the automobile, the question is left in the realm of conjecture and surmise. Just what happened to bring about the 'great impact', as characterized by Mrs. Dorney, is pure guesswork. And the rule of res ipsa loquitur upon which plaintiffs rely is inapplicable.
Under decisions of this Court in actions based on actionable negligence, and there is no definite evidence as to what caused the accident and no evidence of negligence except the bare fact that the accident occurred, and plaintiff therefore seeks to maintain her action by applying the rule res ipsa loquitur, the rule is as stated in Scott v. London Docks Co., 159 Eng.Rep. 665, that 'There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, or affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. ' See among others Saunders v. Norfolk & W. R. Co., 185 N.C. 289, 117 S.E. 4, 29 A.L.R. 1258; Lea v. Carolina Power and Light Co., 246 N.C. 287, 98 S.E.2d 9.
But decisions of this Court uniformly hold that the principle of res ipsa loquitur 'does not apply (1) when all the facts causing the accident are known and testified to by the witnesses at the trial * * *; (2) where more than one inference can be drawn from the evidence as to the cause of the injury * * *; (3) where the existence of negligent default is not the more reasonable probability, and where the proof of the occurrence, without more, leaves the matter resting only in conjecture * * *; (4) where it appears that the accident was due to a cause beyond the control of the defendant, such as the act of God or the wrongful or tortious act of a stranger * * *; (5) when the instrumentality causing the injury is not under the exclusive control or management of the defendant * * *; (6) where the injury results from accident as defined and contemplated by law * * *. ' Springs v. Doll, 197 N.C. 240, 148 S.E. 251, 252.
Nevertheless plaintiffs, appellants, relying principally upon Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477, contend that the doctrine of res ipsa loquitur is recognized in North Carolina as applicable to unexplained automobile accidents.
In this connection it must be noted, however, that 'Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered,'--so declared Chief Justice Marshall, writing in 1807 in United States v. Burr, 4 Cranch 470, at page 482. And this rule has been expressed in many opinions before this Court. See cases listed in Strong's N.C.Index, Vol. 1, Appeal and Error, Sec. 59, including Carpenter v. Carpenter, 1956, 244 N.C. 286, 93 S.E.2d 617, 624, where in opinion by Bobbitt, J., after speaking of statements in our decisions 'which, [when] considered apart from the factual situations under consideration, tend to support plaintiff's contention,' added 'But we are mindful of the apt expression of Barnhill, J. (now C. J.): 'The law discussed in any opinion is set within the framework of the facts of that particular case * * *.' ' Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10.
With this rule in mind, it is seen that the factual situation in the Etheridge case, [222 N.C. 616, 24 S.E.2d 478] as stated in the opinion of the Court, is this: ...
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