Gentile v. Wilson , 242 N.C. 704 ( 1955 )

89 S.E.2d 403 (1955) 242 N.C. 704

Mrs. Armida R. GENTILE
v.
Mrs. Rose Ray WILSON.

No. 246.

Supreme Court of North Carolina.

October 12, 1955.

Helms & Mulliss, James B. McMillan, Wm. H. Bobbitt, Jr., Charlotte, for plaintiff appellant.

Kennedy, Kennedy & Hickman, Frank H. Kennedy, Charlotte, for defendant appellee.

DEVIN, Emergency Justice.

The plaintiff assigns error in the rulings of the trial judge in the admission' of testimony over plaintiff's objection, but we perceive no substantial harm which could have resulted from these rulings or that the jury was improperly influenced thereby.

Plaintiff noted numerous exceptions to the court's charge to the jury. It is contended that the court failed to state correctly and sufficiently the duty incumbent upon the defendant in attempting to move her automobile backward under the circumstances of this case. But when the charge is examined contextually no prejudicial error appears. On this point we note the court charged: "When Mrs. Wilson undertook to back her automobile, the requirements of prudent operation were not necessarily satisfied by her looking prior to or at the beginning of the movement back. It was her duty not merely to look, but to keep a reasonably careful outlook in the direction in which her vehicle was travelling and she, under the law, was held to the duty of seeing what she ought to have seen, and it was her duty to keep an outlook behind to see whether the movement of a pedestrian, movement of another vehicle, was likely to be affected by her movement backward." Thus the court seems to have stated the duty of the defendant to "keep looking" with reasonable clearness. See also Stovall v. Ragland, 211 N.C. 536, 190 S.E. 899; Cooley v. Baker, 231 N.C. 533, 58 S.E.2d 115.

The defendant assigns error to the following portion of the charge: "(D) Now, under the law in this State, as the court understands it, injuries resulting from events taking place without one's foresight or expectation or an event which proceeds from an unknown cause or is an unusual effect of a known cause and, therefore, in the exercise of ordinary care, not expected, must be borne by the unfortunate sufferer, that is, a person who might be injured. The law only requires reasonable foresight, and when the injury complained of is not reasonably foreseeable in the exercise of due care, the person whose conduct is under investigation is not under the law answerable therefor. Under the law, persons are held liable for the consequences or occurrences which they can and should foresee and by reasonable care and prudence guard against. Foreseeable injury is a requisite of proximate cause and proximate cause is a requisite for actionable negligence and actionable negligence is a requisite for a recovery for an action for personal injury especially for an act negligently inflicted. (D)"

This portion of the charge seems to have been quoted by the learned judge from decisions of this Court collected and approved by Denny, J., in Hiatt v. Ritter, 223 N.C. 262, 25 S.E.2d 756.

The plaintiff also assigns as error that the court charged the jury that in order to constitute actionable negligence the plaintiff must show failure on the part of the defendant to exercise due care in the performance of some legal duty owed the plaintiff under the circumstances, and that such negligent breach of duty was the proximate cause of the injury complained of. It is contended that the phrase "the proximate cause" used by the court was likely understood by the jury to mean the sole or only proximate cause of the injury, whereas there may be more than one proximate cause, and that thus an additional and undue burden was placed on the plaintiff to negative contributory negligence. It is urged that the court should have said "a" proximate cause, or "one of the" proximate causes.

However we think what this court said in Harris v. Montgomery Ward & Co., 230 N.C. 485, 53 S.E.2d 536, 539, renders this exception unavailing on this record. We quote: "It is sufficient on the issue of primary negligence for a plaintiff to satisfy the jury from the evidence and by its greater weight that the negligence on the part of the defendant was a proximate cause or one of the proximate causes of his injury, where the evidence also tends to show that the negligence of some other person or agency concurred with the negligence of the defendant in producing plaintiff's injury. (Citing cases.) But when there is no evidence of such concurring negligence, as in this case, then the negligence of the defendant must be the proximate cause of the injury, otherwise the plaintiff is not entitled to recover (citing cases)." Mintz v. Town of Murphy, 235 N.C. 304, 312, 69 S.E.2d 849.

After an examination of the entire charge of the court we are unable to discover prejudicial error in any of the rulings of the court of which the plaintiff can justly complain.

No error.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.

BARNHILL, C. J., and BOBBITT, J., concur in result.

The foregoing opinion was prepared by DEVIN, Emergency Justice, while he was serving in place of WINBORNE, J., who was absent on account of his physical condition. It is now adopted by the Court and ordered filed.