McDonald Ex Rel. McDonald v. Moore Sheet Metal & Heating Co. , 268 N.C. 496 ( 1966 )

151 S.E.2d 27 (1966) 268 N.C. 496

William Larry McDONALD, by His Next Friend, Bernice Tedder McDonald, Plaintiff,
v.
MOORE SHEET METAL AND HEATING COMPANY, Inc. and Norman Kellogg, Defendants.

No. 615.

Supreme Court of North Carolina.

November 23, 1966.

Ottway Burton and John Randolph Ingram, Asheboro, for plaintiff appellant.

Miller & Beck, Asheboro, for defendant appellees.

LAKE, Justice.

Upon direct examination of the defendant Kellogg, who was called as a witness for the plaintiff, concerning a conversation with the father of the plaintiff at the hospital, the plaintiff propounded this question: "Did you discuss the hospital bill?" Objection thereto was sustained. If the witness had been permitted to answer, he would have testified, "I paid the hospital bill." There is no merit in this assignment of error. The fact that the defendant paid the plaintiff's hospital bill is not an implied admission of liability, and evidence of such payment is not competent, nothing else appearing. Hughes v. Anchor Enterprises, Inc., 245 N.C. 131, 95 S.E.2d 577, 63 A.L.R. 2d 685; Brown v. Wood, 201 N.C. 309, 160 S.E. 281.

Other assignments of error relating to the exclusion of evidence offered by the plaintiff are not discussed in the brief and are, therefore, deemed abandoned. Rule 28 of the Rules of Practice in the Supreme Court.

The remaining assignment of error relates to the granting of a motion for judgment of nonsuit. Such a motion cannot be sustained on the ground that there are discrepancies and contradictions in the evidence offered by the plaintiff, such as conflict between the testimony of the defendant called as a witness for the plaintiff and the testimony of other witnesses for the plaintiff. Such discrepancies and contradictions in the plaintiff's evidence are for determination by the jury. Saunders v. Warren, 264 N.C. 200, 141 S.E.2d 308; Benton v. Montague, 253 N.C. 695, 117 S.E.2d 771; Bell v. Simmons, 247 N.C. 488, 101 S.E.2d 383; Strong, N.C.Index, Trial, § 21. The plaintiff's evidence must be interpreted in the light most favorable to him and all reasonable inferences in his favor must be drawn therefrom. Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338; Redden v. Bynum, 256 N.C. 351, 123 S.E.2d 734.

So interpreted, the plaintiff's evidence is sufficient to support findings that the defendant Kellogg laid across his truck a number of loose two-by-eight planks, the ends of which rested upon the tops of the side boards of the truck, each plank being held in place only by its own weight, and, as he drove the truck through the tunnel, one of these planks came off of the truck in some manner not explained, flew through the air, and struck the plaintiff upon the head.

The plaintiff alleged in his complaint that Kellogg was negligent in that he operated the truck "knowing that the loosely brought together timbers forming this homemade grandstand would be likely to slide off and injure persons," and that the "negligently constructed, rickety grandstand hit the concrete underpass, throwing timbers into the pickup truck." There is no evidence that any part of the truck or of any plank thereon struck any portion of the tunnel. The only evidence is to the contrary.

There is no evidence to support any other allegation of negligence in the complaint. The plaintiff's case must, therefore, stand or fall upon the sufficiency of the above facts to support the allegations concerning the "grandstand" and the sufficiency of those allegations to constitute negligence.

Although, at the time of the events in question, the two vehicles were being operated upon private property of the Speedway, and not upon a public highway, it was incumbent upon Kellogg to use that degree of care in the operation of the truck which a reasonable man would use under like circumstances. Though the statutes applicable to the operation of motor vehicles upon public highways would not apply to such operation elsewhere, the common law rules of liability for injury proximately caused by negligence do apply. Bennett v. Young, 266 N.C. 164, 145 S.E.2d 853. Kellogg knew, or should have known, that vehicular traffic was moving through the tunnel in the same manner as upon a heavily congested public highway. Therefore, conduct by him which, in the absence of statute, would have constituted negligence if it had occurred upon a congested public highway must be deemed negligence if it occurred while driving through this tunnel.

Proof of an injury, without more, does not raise a presumption of negligence. Spell v. Mechanical Contractors, Inc., 261 N.C. 589, 135 S.E.2d 544. Negligence is the doing of an act which a reasonable man would not do under the same circumstances, or the failure to do an act which a reasonable man would not omit under similar circumstances. An act or omission does not constitute actionable negligence unless a reasonable man could have foreseen that injury to another would be likely to occur from such act or omission. Pinyan v. Settle, 263 N.C. 578, 139 S.E.2d 863; Modern Electric Co. v. Dennis, 255 N.C. 64, 120 S.E.2d 533; Priest v. Thompson, 254 N.C. 673, 119 S.E.2d 613. "The law does not require omniscience and proof of negligence must rest on a more solid foundation than mere conjecture." Clark v. Scheld, 253 N.C. 732, 117 S.E.2d 838.

Assuming that it might reasonably be foreseen that a loose plank of the size here described, lying flat across the top of a truck, might blow off or be shaken off and do injury to another if the truck were operated at a high speed or over such terrain or in such a manner as to cause violent vibration, it does not follow that it could be reasonably foreseen that such a plank would fall off so long as the truck was operated without sudden jerks and jolts, and at a speed not in excess of five miles per hour. Actionable negligence by Kellogg at the time the plaintiff was injured cannot be predicated upon an assumption that when Kellogg reached the open highway, he intended to operate at a greater speed.

There being no evidence that the truck or the plank struck any part of the tunnel or that the truck was proceeding otherwise than at an exceedingly low speed and without jolting or jerking, the cause of the plank's falling from the truck and striking the plaintiff, assuming that it did so, is left in the realm of conjecture and speculation. The granting of the motion for judgment of nonsuit was, therefore, proper.

Affirmed.