Mintz v. Town of Murphy

• Decision Date: 26 March 1952
• Docket Number: No. 24,24
• Citation: 69 S.E.2d 849,235 N.C. 304
• Parties: MINTZ, v. TOWN OF MURPHY.
• Court: North Carolina Supreme Court

Page 849

69 S.E.2d 849

235 N.C. 304

MINTZ, v.TOWN OF MURPHY.

No. 24

Supreme Court of North Carolina.

March 26, 1952

F.O. Christopher, O. L. Anderson, Murphy, T.M. Jenkins, Robbinsville, for plaintiffappellant.

Edwards & Leatherwood, Bryson City, John M. Queen, Waynesville, for defendantappellee.

WINBORNE, Justice.

The sole question here is this: Considering the evidence shown in the record on this appeal in the light most favorable to plaintiff, is there sufficient evidence to take the case to the jury as against the defendantTown of Murphy?The trial court did not consider it sufficient for this purpose.And in this ruling error is not made to appear.

In an action for recovery of damages for injury resulting from actionable negligence of defendant, plaintiff 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 plaintiff 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 a man of ordinary prudence could have foreseen that such result was probable under the facts as they existed.Whitt v. Rand, 187 N.C. 805, 123 S.E. 84;Murray v. Atlantic Coast Line R.Co., 218 N.C. 392, 11 S.E.2d 326;Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661;Luttrell v. Carolina Mineral Co., 220 N.C. 782, 18 S.E.2d 412;Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406;Harris v. Montgomery Ward & Co., 230 N.C. 485, 53 S.E.2d 536;McIntyre v. Monarch Elevator & Machine Co., 230 N.C. 539, 54 S.E.2d 45;Spivey v. Newman, 232 N.C. 281, 59 S.E.2d 844;Baker v. Atlantic Coast Line R. Co., 232 N.C. 523, 61 S.E.2d 621.

If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit is proper.Luttrell v. Carolina Mineral Co., supra;Mitchell v. Melts, supra;Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377.

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;Russell v. Carolina Cent. R. R. Co., 118 N.C. 1098, 24 S.E. 512;Lineberry v. North Carolina R. Co., 187 N.C. 786, 123 S.E. 1;Clinard v. Clinard Electric Co., 192 N.C. 736, 136 S.E. 1;Murray v. Atlantic Coast Line R. Co., supra;Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239;Luttrell v. Carolina Mineral Co., supra;Baker v. Atlantic Coast Line R. Co., supra.

In Lineberry v. North Carolina R. Co., supra[187 N.C. 786, 123 S.E. 4], in opinion by Clarkson, J., it is 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. 'See alsoNichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320;Baker v. Atlantic Coast Line R. Co., supra.

Furthermore, it is proper in negligence cases to sustain a demurrer to the evidence and enter judgment as of nonsuit under provision of G.S. § 1-183, '1.When all the evidence, taken in the most favorable light for the plaintiff, fails to show any actionable neglignence 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, englect, or default of an outside agency or responsible third person. * * * ' Stacy, C. J., in Smith v. Sink, 211 N.C. 725, 192 S.E. 108, and cases cited in respect to each principle.See alsoBoyd v. Seaboard Air Line R. Co., 200 N.C. 324, 156 S.E. 507;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;Murray v. Atlantic Coast Line R. Co., supra;Luttrell v. Carolina Mineral Co., supra;Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197.

In Smith v. Sink, supra, it is also said: 'We had occasion to examine anew this doctrine of insulating the conduct of one, even when it amounts to passive negligence, by the intervention of the active negligence of an independent agency or third party, as applied to variant fact situations, in the recent cases of Beach v. Patton[208 N.C. 134, 179 S.E. 446],' and others cited.Then, continuing, 'These decisions, and others, are in full support and approval of Mr. Wharton's statement in his valuable work on Negligence (section 134): 'Supposing that if it had not been for the intervention of a responsible third partythe defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff?This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action.I am negligent on a particular subject-matter.Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person.If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces.He is the one who is liable to the person injured.' ' Then there follows, to like effect, a quotation from Milwaukee & St. P. R. Co., v. Kellogg, 94 U.S. 469, 24 L.Ed. 256.See alsoButner v. Spease, supra;Riggs v. Akers Motor Lines, supra.

A municipal corporation, engaged in the business of supplying electricity for private advantage and emolument is, as to this, regarded as a private corporation,--and, in such capacity is liable to persons injured by the actionable negligence of its servants, agents and employees.Fisher v. New Bern, 140 N.C. 506, 53 S.E. 342, 5 L.R.A.,N.S., 542;Harrington v. Commissioners of Town of Wadesboro, 153 N.C. 437, 69 S.E. 399;Rice v. Lumberton, N.C., 69 S.E.2d 543.

And this Court declared in Helms v. Citizens' Light & Power Co., 192 N.C. 784, 136 S.E. 9, 10, that: 'Electric companies are required to use reasonable care in the construction and maintenance of their lines and apparatus.The degree of care which will satisfy this requirement varies, of course, with the circumstances, but it must always be commensurate with the dangers involved; and, where the wires maintained by a company are designed to carry a strong and powerful current of electricity, the law imposes upon the company the duty of exercising the utmost care and prudence consistent with the practical operation of its business, to avoid injury to those likely to come in contact with its wires.'

And in Small v. Southern Public Utilities Co., 200 N.C. 719, 158 S.E. 385, 386, it is said that, 'Due to the deadly and latently dangerous character of electricity, the degree...