Williams v. Boulerice

149 S.E.2d 590 (1966) 268 N.C. 62

Mary Gibbs WILLIAMS
v.
Joseph R. BOULERICE, Cecilia W. Boulerice, Robert E. Hare and William Leon Hare.

No. 36.

Supreme Court of North Carolina.

August 26, 1966.

Russell E. Twiford, Elizabeth City, for plaintiff appellant.

Leroy, Wells & Shaw, by Dewey W. Wells, Elizabeth City, for defendants Hare, appellees.

John H. Hall, Elizabeth City, for defendants Boulerice, appellees.

PARKER, Chief Justice.

APPEAL AS TO DEFENDANTS BOULERICE

Plaintiff assigns as error the entry of judgment of compulsory nonsuit of her action against defendants Boulerice.

Plaintiff's evidence shows Cecilia Boulerice was faced with a sudden emergency. "`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.'" Lamm v. Gardner, 250 N.C. 540, 108 S.E.2d 847; Lawing v. Landis, 256 N. C. 677, 124 S.E.2d 877; Simmons v. Rogers, 247 N.C. 340, 100 S.E.2d 849. Ordinarily, the factual determination as to reasonableness of a choice is a question for the jury. Rouse v. Jones, 254 N.C. 575, 119 S.E.2d 628; Lamm v. Gardner, supra; Simmons v. Rogers, supra; Hunter v. Bruton, 216 N.C. 540, 5 S.E.2d 719; Woods v. Freeman, 213 N.C. 314, 195 S.E. 812; Waller v. Hipp, 208 N.C. 117, 179 S.E. 428. The true and ultimate test of Cecilia Boulerice's operation of the automobile in the emergency is this: What would a reasonably prudent person have done in the light of all the surrounding facts and circumstances? Lamm v. Gardner, supra.

Defendant Cecilia Boulerice made two choices. Her first choice was to turn to the right to avoid the oncoming Ford driven by Leon Hare. She was then faced with a fire hydrant. Her second choice was to turn her car to the left onto the pavement of the street. Even if we concede that her choices up to this point were those that a person of ordinary care and prudence, similarly situated, would have made, the jury could find from plaintiff's evidence that a person of ordinary care and prudence, similarly situated, having returned to the paved street, would have taken action such as turning to the right, or applying the brakes to keep the automobile on the street and out of the ditch, and in failing to do so defendant Cecilia Boulerice's choice of conduct did not accord with what an ordinarily prudent person would or might have done under the same or similar circumstances.

Plaintiff's evidence, considered in the light most favorable to her, and giving her the benefit of every reasonable inference to be legitimately deduced therefrom, would permit a jury to find Cecilia Boulerice was negligent in the operation of her automobile and that such negligence was a proximate cause of plaintiff's injuries. Plaintiff's case against the defendants Boulerice should have been submitted to the jury and the court committed error in deciding the question as a matter of law. Lake v. Harris Express, Inc., 249 N.C. 410, 106 S.E.2d 518; McFalls v. Smith, 249 N.C. 123, 105 S.E.2d 297.

The case of Patterson v. Ritchie, 202 N. C. 725, 164 S.E. 117, relied upon by defendants Boulerice, is factually distinguishable. In that case the driver of the automobile in which plaintiff's intestate was riding as a guest on a State highway in the midst of heavy traffic was suddenly confronted by a situation caused by a truck approaching him from the opposite direction, and he was required to act quickly for the safety of himself and his guest. Under the circumstances shown by the evidence, the court held he was not negligent in swerving the automobile suddenly to his right, thus causing it to leave the hard surface and to run onto the shoulder of the highway. The collision occurred within a short distance with a post which was standing beside the highway. In the instant case, Cecilia Boulerice swerved to the right onto the shoulder, then turned back onto the street, and after returning back to the street, failed to apply her brakes and to keep the automobile in the street and out of the ditch.

The judgment of compulsory nonsuit in plaintiff's case against defendants Boulerice was improvidently entered, and is

Reversed.

APPEAL AS TO DEFENDANTS HARE

Plaintiff excepts to and assigns as error certain portions of the judge's charge to the jury.

After explaining the general principles of law applicable to the case and in the course of applying the law to the evidence, the court gave the following instruction relating to proximate cause:

"Her case is bottomed on the theory, and she has alleged and has offered evidence which she says and contends should satisfy you that her daughter, in attempting to avoid this car, ran off the road on the right, and then in attempting to get her car out of what has been described as a drain ditch on the right, she cut back to the left, her maneuvering, or her cut back to the left, as a result of that, she went across the road and in the ditch. Now, you—the burden is on Mrs. Williams to satisfy you, if she has satisfied you that young Hare committed any such act, as I have outlined here for you, and that act was a negligent act, and it is negligence per se, but it is for you to say whether or not it caused this injury, and before you can answer that part of it, proximate cause, then you would answer this question, whether or not such acts would have caused a reasonable and prudent person namely, the driver of Mrs. Williams' car, or the car she was riding in, to have taken the action that she took, and whether or not her action from that point on was that of a reasonable and prudent person.

"* * * But you will not charge this plaintiff with a bad choice on the part of her hostess driver Mrs. Boulerice, but you will only charge her with satisfying you that Mrs. Boulerice acted as a reasonable and prudent person would act under the same or similar circumstances." (Emphasis ours.)

The only negligence of legal importance is negligence which proximately causes or contributes to the death or injury under judicial investigation. Miller v. Coppage, 261 N.C. 430, 135 S.E.2d 1; Oxendine v. Lowry, 260 N.C. 709, 133 S.E.2d 687. 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.

In that part of the charge which applied the law to the evidence, the court's instruction on proximate cause was limited to the element of foreseeability, and that element was incorrectly stated. Although the court correctly defined proximate cause in an earlier general statement of the law, the subsequent erroneous instruction constitutes error. Barber v. Heeden, 265 N.C. 682, 144 S.E.2d 886; Rodgers v. Thompson, 256 N. C. 265, 123 S.E.2d 785; Mitchell v. White, 256 N.C. 437, 124 S.E.2d 137. For error in the charge plaintiff is entitled to a

New trial.

Appeal as to defendants Boulerice—reversed.

Appeal as to defendants Hare—new trial.