Sutton v. Duke, 698SC560

• Decision Date: 31 December 1969
• Docket Number: No. 698SC560,698SC560
• Citation: 7 N.C.App. 100,171 S.E.2d 343
• Court: North Carolina Court of Appeals
• Parties: Jimmy Ray SUTTON v. Marvin DUKE, Kinston Fertilizer Company, and Seaboard Coast Line RailroadCompany.

Page 343

171 S.E.2d 343

7 N.C.App. 100

Jimmy Ray SUTTON v. Marvin DUKE, Kinston Fertilizer Company, and Seaboard Coast Line RailroadCompany.

No. 698SC560.

Court of Appeals of North Carolina.

Dec. 31, 1969.

Certiorari Allowed March 3, 1970.

Lewis & Rouse, by Robert D. Rouse, Jr., Farmville, for plaintiff appellant.

Aycock, LaRoque, Allen, Cheek & Hines, by C. B. Aycock, Kinston, for defendant appellee Marvin Duke.

Barden, Stith, McCotter & Sugg, by L. A. Stith, New Bern, for defendant appellee Kinston Fertilizer Co.

Spruill, Trotter & Lane, by John R. Jolly, Jr., Rocky Mount, for defendant appellee Seaboard Coast Line R. Co.

MALLARD, Chief Justice.

In Lenoir County the keeper of a pony, mule or other animal is liable under our statutes for negligently permitting such animal to escape and go upon public highways in the event they do damage to travelers or others lawfully thereon. The liability of the keeper rests upon the question of whether the keeper is guilty of negligence in permitting such animal to escape. The same rules as to what is or is not negligence in ordinary situations apply. The person having charge of an animal is under the legal duty to exercise the ordinary care and foresight of a reasonably prudent person in keeping the animal in restraint. Herndon v. Allen, 253 N.C. 271, 116 S.E.2d 728 (1960); Shaw v. Joyce, 249 N.C. 415, 106 S.E.2d 459 (1959); Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711 (1953); Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10 (1940). In this case the collision of the plaintiff with the mule is alleged to have occurred in Lenoir County. Lenoir County, by the provisions of G.S. § 68--39, is subject to the provisions of Article 3, Chapter 68, of the General Statutes of North Carolina which requires livestock to be kept fenced in and contained by the owner.

A demurrer to the pleadings challenges the sufficiency thereof. Teague v. Siler City Oil Co., 232 N.C. 469, 61 S.E.2d 345 (1950). Upon a demurrer to a complaint on the grounds that there is a failure to state facts sufficient to constitute a cause of action, the allegations are to be liberally construed so as to give plaintiff the benefit of every reasonable intendment in his favor. Clemmons v. Life Insurance Co. of Georgia, 274 N.C. 416, 163 S.E.2d 761 (1968); Grimes v. Gibert, 6 N.C.App. 304, 170 S.E.2d 65 (1969). G.S. § 1--151.

'A demurrer admits, for the purpose of testing the sufficiency of the pleading, the truth of factual averments well stated, and relevant inferences of fact reasonably deducible therefrom.' 6 Strong, N.C. Index 2d, Pleadings, § 19. 'A demurrer raises no issue of fact, since it admits the truth of all material facts which are properly pleaded.' 1 McIntosh, N.C. Practice 2d, § 1191.

The demurrers in this case admit, for the purpose of testing the sufficiency of the pleadings, the allegation that the defendants were negligent in leaving the gate open and allowing the pony to escape. Defendants contend that the complaint does not properly allege that the negligence of the defendants was one of the proximate causes of plaintiff's injuries, in that, such injuries were not foreseeable in the exercise of due care. Defendants further contend that they could not reasonably foresee that such a chain of events would occur from the negligent act of leaving the gate open. On the other hand, the plaintiff contends that the negligence of the defendants gave the pony its freedom; that because of the freedom of the pony, forces were set in motion which directly caused plaintiff's injury; and that defendants were charged with the duty of foreseeing that such negligence was likely to result in consequences of a generally injurious nature.

The plaintiff did not make the owner of the mule a party defendant. There is no allegation in the complaint that the owner of the mule failed to exercise due care to retain the mule. There is no allegation that the mule which plaintiff struck was improperly retained prior to the arrival of the pony. The allegations of the complaint are briefly summarized as follows: The defendants negligently permitted the pony to escape on 22 April 1967. After escaping at approximately 8:00 p.m., the pony went about five hundred yards to the lot where some mules were enclosed and there agitated, excited and attracted the mules in such way that the mules were caused to break out of their enclosure. After their escape, one of the mules traveled approximately three-fourths of a mile and wandered onto the highway in plaintiff's lane of travel where it was struck by plaintiff's automobile at about 9:20 p.m. Plaintiff was injured in the collision with the mule.

In the case of Williams v. Boulerice, 268 N.C. 62, 149 S.E.2d 590 (1966), it is said:

'Proximate cause is the 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 a result was probable under all the facts as they existed. Jenkins v. Leftwich Electric Co., 254 N.C. 553, 119 S.E.2d 767. Foreseeability is an essential element of proximate cause. Pinyan v. Settle, 263 N.C. 578, 139 S.E.2d 863; Pittman v. Swanson, 255 N.C. 681, 122 S.E.2d 814. This does not mean that the defendant must have foreseen the injury in the exact form in which it occurred, but that, in the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected. Slaughter v. Slaughter, 264 N.C. 732, 142 S.E.2d 683; Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292.'

It is elementary that there is a distinction between the commission of a wrong and liability to another for commission of such wrong. Standing alone, a negligent act does not create liability. However, when such negligent act is a proximate cause of an injury to another person, nothing else appearing, liability does occur.

In the case before us the plaintiff did not strike the pony that was allowed to run at large but a mule that the pony caused to break out of its enclosure. However, the reasonable inference from the wording of the complaint is that the pony was the sole cause of the mule breaking out and being at large.

It could be reasonably foreseen that the pony, after being...