Rodgers v. Thompson

• Decision Date: 02 February 1962
• Docket Number: No. 311,311
• Parties: George Woodrow RODGERS v. William Alonzo THOMPSON and John Earl Gregory, Jr.
• Court: North Carolina Supreme Court

Page 785

123 S.E.2d 785

256 N.C. 265

George Woodrow RODGERS v. William Alonzo THOMPSON and John Earl Gregory, Jr.

No. 311

Supreme Court of North Carolina.

Feb. 2, 1962

Dees, Dees & Smith, by William A. Dees, Jr., Goldsboro and White & Aycock, by Charles B. Aycock, Kinston, for defendant, appellants.

Lucas, Rand & Rose, Wilson and Taylor, Allen and Warren, Goldsboro, for plaintiff, appellee.

PARKER, Justice.

Defendants assign as error the denial of their motion for judgment of involuntary nonsuit made at the close of all the evidence.

Defendants' first contention is that the plaintiff has failed to make out a case of negligence against them. Plaintiff's evidence, including the stipulation of the parties, considered in the light most favorable to him and giving him the benefit of every legitimate inference to be drawn therefrom, (Hutchens v. Southard, 254 N.C. 428, 119 S.E.2d 205), tends to show that the collision between the truck driven by plaintiff and the defendants' truck, and the immediately resulting fire on plaintiff's truck under the meter box, were caused by the negligence of the defendants in the operation of their truck, and notwithstanding plaintiff's intervening act in immediately stopping his truck, jumping out, and running to the rear to close the valve to seal the 550 gallons of liquefied petroleum gas in the tank of his truck in order to prevent an explosion, which probably might take his life and destroy the truck, and when he was closing the valve the entire truck was engulfed in flaming gas and he was severely burned, defendants' negligence continued to be efficiently, actively, and potently operative to produce the injuries he suffered from the fire, and that the intervening act of plaintiff was a normal response to the stimulus of an extremely dangerous situation created by the defendants' negligent operation of their truck.

According to the American Law Institute Restatement, Torts (Negligence), Vol. 2, sec. 443, Comment a, in order for proximate causation to exist 'it is not necessary that an act which is done by the person harmed or by a third person should be 'reasonable'; that is, that the act should be one which a reasonable man would regard as not involving an unreasonable risk to himself or others. It is enough that the act is a normal response to the stimulus of the situation created by the actor's negligence. If it be done by the person who is harmed and is unreasonable in the sense above stated, it may amount to contributory negligence which as such prevents him from recovering * * *, but the actor's negligent conduct [that is, in automobile cases, the negligence causing the accident] is nonetheless the legal cause of the harm. ' Plaintiff's acts in running to the rear of his truck to cut off the valve and seal the 550 gallons of liquefied pertroleum gas in the tank to prevent an explosion, and in clsing the valve, were of such a character as to be naturally called forth by defendants' negligence--to borrow the expression of Justice Cardozo they were the 'child of the occasion.' Wagner v. International R. Co., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1.

Plaintiff's evidence, considered in the light most favorable to him and giving to him every legitimate inference to be drawn therefrom, tends to show negligence on defendants' part, foreseeable injury, and proximate causation of his injuries in such ample manner as to require neither further discussion nor citation of authority. 'There can rarely be much doubt as to the proximate causation where the injured person was engaged in escaping threatened injury to himself.' 166 A.L.R. Anno., p. 754. There is no merit to defendants' contentions that plaintiff failed to make out a case of actionable negligence against them.

Defendants further contend that plaintiff was guilty of contributory negligence as a matter of law in violating the provisions of G.S. § 119-49, minimum standards of safety in transporting liquefied petroleum gases, and in violating the provisions of the pamphlets referred to in the statute. This contention is without merit, for the very simple reason that defendants in their answer have not pleaded a violation of this statute, and of the pamphlets therein referred to, by plaintiff as contributory negligence. The plea of contributory negligence is an affirmative defense, and when relied upon as a defense, it must be set up in the answer and proved on the trial. G.S. § 1-139; James v. Atlantic & East Carolina R. Co., 233 N.C. 591, 65 S.E.2d 214. This Court speaking by Ervin, J., accurately said in Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326: 'The first requirement is that the defendant must specially plead in his answer an act or omission of the plaintiff constituting contributory negligence in law; and the second requirement is that the defendant must prove on the trial the act or omission of the plaintiff so pleaded. Allegation without proof and proof without allegation are equally unavailing to the defendant.'

In addition, defendants contend that plaintiff was guilty of contributory negligence as a matter of law, for that his own evidence clearly shows he knew the liquefied petroleum gas he was transporting was dangerous and explosive, that 'by his own negligence in leaving the valve open a dangerous situation of which he was cognizant' was created, that after the collision he saw his truck was on fire, and notwithstanding such knowledge he went to the rear of the truck to cut off the valve 'to save his employer's property,' thereby rashly exposing himself to obvious danger, when there was a possibility he could have run from the truck and not have been burned, and that there was no 'person or any other property in the vicinity of the plaintiff's truck immediately after the collision.'

Plaintiff's evidence shows he was in the truck immediately after the collision and immediate resulting fire under the meter box, and at that time there was no fire at the rear of the truck. He testified his purpose in running to the rear of the truck to turn off the valve to seal the 550 gallons of liquefied petroleum gas in the tank of the truck was to prevent, if possible, an explosion; he thought that probably he might thereby be saving his own life, as well as onlookers who might gather at the scene, and also save the truck and property nearby. His evidence on cross-examination is that he could possibly have run from the truck, and not have been burned. When he was closing the two-inch valve at the rear of the truck, the entire truck was engulfed in flames, and he was severely burned.

Plaintiff's evidence tends to show negligence on the defendants' part in bringing about the extremely dangerous situation in which he was placed, and that no negligence on his part in whole or in part caused or contributed to his extremely dangerous situation and the sudden emergency confronting him. His evidence further tends to show that the peril of an explosion and of an engulfing fire that would thereby follow threatening his own life and safety was imminent and real and not merely imaginary or speculative, unless he cut off the valve at the rear of the truck, and sealed the 550 gallons of liquefied petroleum gas in the tank of the truck. In addition, his evidence tends to show he was required to act instantaneously in a sudden emergency caused by defendants' negligence, when he was free from negligence in bringing it about or contributing to it, in the presence of, or under a reasonably well-founded apprehension of, impending and deadly peril, such as is calculated to produce fright, excitement, or bewilderment, and affect the judgment.

The rule is well established with us, and elsewhere in the various jurisdictions, that when a plaintiff is required to act suddenly and in the face of real, or under a reasonably well-founded apprehension of, impending and imminent danger to himself caused by defendants' negligence, when he was free from any negligence in bringing it about or contributing to it in whole or in part, he is not required to act as though he had time for deliberation and the full exercise of his judgment and reasoning faculties. Ordinary care to avoid injury is all that is required, but ordinary care is required; a sudden peril or emergency does not relieve him of the duty of exercising ordinary care for his own safety. The test is, did he act as a reasonably prudent man would have acted under the same or similar circumstances. Cockman v. Powers, 248 N.C. 403, 103 S.E.2d 710; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593; Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562; 65 C.J.S. Negligence § 123; 38 Am.Jur., Negligence, secs. 194, 195, 206.

'When a person exercises the care and caution in an emergency [which he did not cause or bring about in whole or material part, and which was caused by the negligence of another] which an ordinarily prudent person would have used under the same or similar circumstances, he is not negligent merely because he fails to exercise the best judgment, or does not take the safest course, or does not take every precaution which from a careful review of the circumstances it appears he might have taken, or, in attempting to escape the danger under such circumstances, puts himself in a more dangerous position.' 65 C.J.S. Negligence § 123, pp. 734-735.

'One who is required to act in an emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made. ' Ingle v. Cassady, supra.

This is not a case where one sees a person in imminent and serious peril through the negligence of another, and attempts a rescue, as in Alford v. Washington, 244 N.C. 132, 92 S.E.2d 788, and Norris v. Atlantic Coast Line R. Co., 152 N.C. 505, 67 S.E. 1017, 27 L.R.A.,N.S., 1069. Pegram v. Seaboard...