Newton v. Texas Co.

• Decision Date: 08 December 1920
• Docket Number: 396.
• Citation: 105 S.E. 433,180 N.C. 561
• Parties: NEWTON v. TEXAS CO.
• Court: North Carolina Supreme Court

105 S.E. 433

180 N.C. 561

NEWTON v. TEXAS CO.

No. 396.

Supreme Court of North Carolina

December 8, 1920

Appeal from Superior Court, Guilford County; Shaw, Judge.

Action by Nancy E. Newton against the Texas Company. Judgment for plaintiff, and defendant appeals. No error.

The plaintiff sued to recover damages for injuries sustained from an explosion on defendant's premises, in the city of Greensboro, on May 3, 1919, it being the same explosion described in Stone v. Texas Co., 105 S.E. 425 decided at this term. Nearly all of the questions now raised were passed upon in that case, the only practical difference between the two cases being that there was evidence in this case that defendant had applied for and obtained a license to conduct business at its plant in the city. The jury rendered a verdict for the plaintiff, assessing her damages at $3,000. Judgment thereon, and defendant appealed.

Guy Stevens, of New York City, Roberson & Dalton, of High Point and Brooks, Sapp & Kelly, of Greensboro, for appellant.

John A Barringer and Wilson & Frazier, all of Greensboro, for appellee.

WALKER J. (after stating the facts as above).

We will consider the assignments of error in the order of their statement in the record.

The first and third assignments to the refusal of a nonsuit are overruled, as there was sufficient evidence for the jury to consider as to defendant's negligence. Assignment No. 2 is untenable, as the post card, received the day after the explosion, containing the words "New Year's Eve, then the explosion," was incompetent, hearsay, and irrelevant, and no part of the res gestæ. The judge properly excluded it. The court gave the instruction set forth in the fourth assignment, so far as it was proper that it should be given. There was evidence for the jury to consider that the ordinance of the city had been violated. But the plaintiff has more reason for an objection to the charge in this respect than has the defendant, as it was less favorable to her than it should have been.

The court substantially gave the instruction set forth in the fifth assignment of error. The court could not have given the instruction in the sixth and seventh assignments of error without passing upon the evidence and usurping the function of the jury, and, in one respect, without withdrawing a material portion of the relevant evidence from the jury. The eighth assignment is substantially the same as the two in regard to the motion for a nonsuit, and must share their fate.

The first and second exceptions to the instructions, as set forth in assignments 9 and 10, were properly overruled. The explosion was an admitted fact, and should have been considered along with the other evidence. The plaintiff could not have made a beginning in the development of her case without this fact being considered. The court was only reciting the facts and circumstances, which were competent to be considered by the jury on the question of negligence. In other words, he was concatenating such facts, and not confining the jury to any one fact. He had a perfect right to tell the jury what evidence was relevant to the issues, if he did not give an opinion as to whether the facts were fully or sufficiently proven, or intimate his opinion upon the weight of the evidence, but he is required "to state in a plain and correct manner the evidence in the case, and declare and explain the law arising thereon." Revisal, § 535. It is not an expression of opinion merely to array the testimony in the case, in a proper manner, and to instruct the jury as to what is and what is not evidence.

If the defendant, by its negligence produced a situation or condition of danger, by allowing gasoline to escape from its warehouse and run down a street, where it would probably come in contact with fire, sparks from a passing engine, or live ashes from a lighted cigar or cigarette dropped by a passer-by, and the explosion was caused thereby, we do not see why this would not be negligence as much so as the act of a railroad company in permitting a spark to escape from a defective smokestack and fall on adjoining property, thereby injuring or destroying it. If the negligence of the defendant combined with the act of some other person, and proximately injured the plaintiff, the defendant would be liable, though he had no connection with the conduct of the third party, and no control over him. This was held to be the law in Grand Trunk Ry. Co. v. Cummings, 106 U.S. 700, 1 S.Ct. 493, 27 L.Ed. 266, and 1 Shearman & Redfield on Negligence (6th Ed. by Street) § 39, where it is said to be universally agreed that, if the damage is caused by the concurring force of the defendant's negligence and some other cause for which he is not responsible, including the "act of God" or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage, within the definition already given. It is also agreed that, if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff's damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated, or been bound to anticipate, the interference of the superior force which, concurring with his own negligence, produced the damage. I Sh. & Redf. on Neg. § 39. The defendant's vessel, owing to his negligence, struck, and was driven by the wind and tide upon a sea wall, damaging the same. In that state of the weather and tide, it was impossible to prevent this result, after the ship had once struck. Held, that defendants were liable for the damage caused to the wall. Romney v. Trinity House, L. R. 5 Ex. 204, affirmed L. R. 7 Ex. 247. An action lies by a passenger against a carrier, if the injury occurred in part from an unforeseen cause, and in part by negligence. Brehm v. Great Western R. Co., 34 Barb. (N. Y.) 256. The defendant had wrongfully placed a dam across a stream on plaintiff's land, and allowed it to remain there; being swept away by a freshet, the rush of water injured plaintiff's property; defendant held liable. Dickinson v. Boyle, 17 Pick. (Mass.) 78, 28 Am. Dec. 281. See, also, notes to Sh. & Redf. on Negligence, § 39 and cases cited therein. In Grand Trunk Ry. Co. v. Cummings, supra, Chief Justice Waite said:

"If the negligence of the company contributed to it, it must necessarily have been an immediate cause of the accident, and it is no defense that another was likewise guilty of wrong."

The same doctrine is fully discussed in Ridge v. Railroad Co., 167 N.C. 510, 83 S.E. 762, L. R. A. 1917E, 215, where we said:

" 'The inquiry must therefore always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury.' In this case there was no intermediate, or intervening, independent and efficient cause, which, operating alone, was sufficient of itself to break the connection between defendant's negligence and the injury, and the primary wrong must be considered as reaching from the beginning to the effect, and therefore as proximate to it"--citing Railroad Co. v. Kellogg, 94 U.S. 469, 475, 24 L.Ed. 256; Insurance Co. v. Boon, 95 U.S. 117, 24 L.Ed. 395; Steele v. Grant, 166 N.C. 635, 82 S.E. 1038; Hardy v. Lumber Co., 160 N.C. at pages 124, 125, 75 S.E. 855, 42 L. R. A. (N. S.) 759; Wade v. Contracting Co., 149 N.C. 177, 62 S.E. 919.

The rule has been stated by us as follows:

"Where there are two causes co-operating to produce an injury, one of which is attributable to defendant's negligence, the latter becomes liable, if together they are the proximate cause of the injury, or if defendant's negligence is such proximate cause." Ridge v. Railroad, supra; Steele v. Grant, supra.

Assignments 12, 13, 14, and 15, relating to the ordinances, cannot be sustained. The court properly construed the ordinances, and the instruction attacked in the fifteenth assignment was more favorable to the defendant than it should have been, as the violation of a statute, or an ordinance, is negligence per se, or rather, to speak more accurately, it is itself a distinct wrong in law, and all that is needed to make it an actionable wrong is the essential element of proximate cause for "wrong and damage" constitute a good cause of action, if there be a causal connection between them. That the violation of a statute, or ordinance of a city or town, is negligence per se, or a distinct wrong in law, is the rule established by the more recent cases. Leathers v. Tobacco...