Wall v. Trogdon , 249 N.C. 747 ( 1959 )

107 S.E.2d 757 (1959) 249 N.C. 747

L. W. WALL and wife, Louise Wall,
v.
Wendell TROGDON and Trogdon Flying Service, Inc.

No. 524.

Supreme Court of North Carolina.

March 25, 1959.

Miller & Beck, John Randolph Ingram, Asheboro, for plaintiffs-appellants.

Walker & Melvin, Greensboro, for defendants-appellees.

WINBORNE, Chief Justice.

It is seen that plaintiffs undertake to ground their alleged cause of action on (1) trespass and (2) actionable negligence. Even so, when the evidence shown in the record of case on appeal is taken in the light most favorable to plaintiffs, and giving to them the benefit of every reasonable inference therefrom, the case in both aspects is left in a state of uncertainty and rests upon possibility.

First, in respect to trespass, it is noted that the General Assembly of 1929 passed an act, Chapter 190, entitled "An Act Concerning Aeronautics and the Regulation of Aircraft, Pilots and Airports," Section 2 (G.S. § 63-11) of which in pertinent part reads: "Sovereignty in space above the lands and waters of this State is declared to rest in the State, except where granted to and assumed by the United States"; and Section 3, G.S. § 63-12, "The ownership of the space above the lands and waters of this State is declared to be vested in the several owners of the surface beneath, subject to the right of flight described in section four."

And in Section 4 of the 1929 Act, now G.S. § 63-13, pertaining to lawfulness of flight, the General Assembly further declared: "Flight in aircraft over the lands and waters of this State is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath * * *."

This section has been amended in Chapter 1001, Session Laws 1947 by inserting after the word "be" and before the word "imminently" the following words: "injurious to the health and happiness, or."

So that it is now lawful for aircraft to fly over the lands and waters of this State, "unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be injurious to the health and happiness, or imminently dangerous to persons or property lawfully on the land or water beneath * * *." (Emphasis supplied.)

It is, therefore, clear that an aircraft can lawfully fly over the land and water of this State, unless done in violation of the provisions of G.S. § 63-13, set forth above. The burden of proof is upon the one asserting such violation. And when testing the sufficiency of the proof the causal connection is deficient.

As to actionable negligence: In an action for recovery of damages for injury resulting from actionable negligence, the plaintiff must show: First, that there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which he owed plaintiff under the circumstances in which they were placed; and, Second, 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 the facts as they existed. See Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406, and cases cited. Indeed 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; State v. Johnson, 199 N.C. 429, 154 S.E. 730; Denny v. Snow, 199 N.C. 773, 155 S.E. 874; Shuford v. Scruggs, 201 N.C. 685, 161 S.E. 315; Rountree v. Fountain, 203 N.C. 381, 166 S.E. 329; Allman v. Southern R. Co., 203 N.C. 660, 166 S.E. 891; Cummings v. Atlantic Coast Line R. Co., 217 N.C. 127, 6 S.E.2d 837; Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661, and numerous other later cases.

If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed.

In the light of these principles applied to the evidence in the case there is no causal connection between the death of the fish in the lakes and the operation of the aircraft.

In the first place there is no evidence as to elements constituting the spray used in spraying the crops. If there were poison in the spray there is no evidence that it was poisonous to fish. If it were poisonous to fish there is no evidence that the fish died from the poison. Whatever the oily substance seen on the waters of one of the lakes was, there is no evidence as to what it was, or the source from which it came. The testimony of the expert fishery biologist is purely speculative, and founded on possibilities. Indeed the element of proximate cause is missing.

Actionable trespass to land is not made out by merely showing that defendant's airplane crossed the air spaces above it at a low level. Plaintiff must show that such flight was "at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water is put by the owner," or that such flight was "so conducted as to be injurious to the health and happiness, or imminently dangerous to persons or property lawfully on the land or water beneath." Nor is actionable trespass to land made out by merely showing that in crossing the air space above the land a liquid streamed from the airplane, without showing that such liquid made an entry upon the lands or waters of the plaintiff, i. e., landed on plaintiffs' property rather than somewhere else.

Other assignments of error are not discussed, nor is there citation of authority in brief filed in this Court. Hence they are deemed abandoned. See Rule 28 of the Rules of Practice in Supreme Court.

The judgment as of nonsuit is

Affirmed.