Herring v. Humphrey

119 S.E.2d 913 (1961) 254 N.C. 741

Opal HERRING
v.
Lloyd HUMPHREY.

No. 310.

Supreme Court of North Carolina.

May 24, 1961.

Jones, Reed & Griffin, Kinston, for plaintiff-appellant.

White & Aycock, Kinston, for defendant-appellee.

BOBBITT, Justice.

Plaintiff's evidence tends to show persons of all ages frequently passed along Grainger Avenue, the railroad track and on or near the vacant lot where the bulldozer was parked. It does not disclose (1) when, why, or by whom, the bulldozer was parked on this vacant lot, or any circumstance incident to the parking thereof, or (2) whether it had been parked at this location on any occasion prior to December 1, 1958, or (3) the ownership of the lot on which it was parked.

The testimony of Elijah Jones is the only evidence as to where the bulldozer was parked. Buck Waters testified the lot referred to by Jones was "between Neuse Distributors and Grady Hardware." Presumably, the bulldozer was on a portion of the vacant lot that extended beyond (north) of any building or structure of Neuse Distributors.

Elijah Jones testified this "was the first time (he) had been there." There is no evidence that Charlie McKinne had been there on any prior occasion. McKinne, although in Kinston, did not testify. Mrs. Cogdell, case worker for Lenoir County Welfare Department, testified that McKinne had been "to Morrison Training School, Hoffman, sent there by the Juvenile Court on an accumulation of charges, one of which was his admission of his participation in driving the bulldozer, truancy, and * * * was * * * on violation of court probation."

There was no evidence as to whether the bulldozer was so constructed and equipped that the ignition system could not be locked. Nor was there evidence as to whether the bulldozer was left in gear when parked.

Jones and McKinne, when they got on the bulldozer, were intermeddlers and trespassers and were well aware of that fact. They refused to heed William Blango's warning "to get down." It was after dark. Nothing appears to indicate any other person was near the bulldozer. McKinne's prior experience, if any, with automotive equipment is not disclosed. Whatever he did, it was sufficient to start the motor and to set the bulldozer in motion. There was no evidence, apart from the testimony of Jones, as to how the bulldozer could be set in motion.

Neither Jones nor McKinne was injured. The attractive nuisance doctrine, considered recently in Dean v. Wilson Construction Co., 251 N.C. 581, 111 S.E.2d 827, applies only in favor of (injured) children of tender years. 38 Am.Jur., Negligence § 156; 65 C.J.S. Negligence § 29(11). It is an exception to the general rule "that an owner or person in charge of property has no duty to a trespasser except to refrain from injuring him intentionally, willfully, or wantonly." 65 C.J.S. Negligence § 29 (1), p. 457; 38 Am.Jur., Negligence § 144.

The parked bulldozer, until set in motion by McKinne, was harmless. It became dangerous on account of McKinne's wrongful conduct.

The evidence was sufficient to show that defendant knew or should have known the bulldozer, if set in motion and abandoned while in motion, would likely endanger persons or property in the area. It was sufficient to show that the bulldozer could be seen by passersby, including children of tender years. But there was no evidence that any child or children, in play or otherwise, had ever climbed upon the bulldozer or had tampered with it in any manner or had even observed it at close hand. The crucial question is whether, under these circumstances, the evidence is sufficient to support a finding that defendant in the exercise of reasonable care should have foreseen that a trespassing child would likely get on the bulldozer and set it in motion.

In Campbell v. Model Steam Laundry, 190 N.C. 649, 130 S.E. 638, cited by plaintiff, the action was for the wrongful death of a four-year old boy. There, the parking of the laundry truck in violation of the city ordinance constituted the alleged negligence. Similarly, in Arnett v. Yeago, 247 N.C. 356, 100 S.E.2d 855, an action for injury to a three-year old boy, the parking of the automobile in violation of statutes constituted the alleged negligence. See Annotation, "Liability for damage or injury by stranger starting motor vehicle left parked on street." 51 A.L.R.2d 633. As stated by Higgins, J., in Williams v. Mickens, 247 N.C. 262, 264, 100 S.E.2d 511, 513: "Negligence in the Campbell case consisted in the leaving of a motor vehicle illegally parked in such condition as rendered it dangerous to heedless children who were known by the owner to be exposed to the hazard." This applies equally to the factual situation in the Arnett case. Here, the bulldozer was not parked on a public street but on a private lot. It was not set in motion by an accidental touching of a lever or gear shift (as in Campbell and Arnett) but by McKinne's intentional and deliberate efforts.

It was held in Williams v. Mickens, supra, that the owner of an automobile, who had parked his car in a lawful manner but had left the keys in the ignition switch, was not liable for injuries inflicted by the negligent operation thereof by a thief.

Ordinarily, in this jurisdiction, foreseeability of injury is considered an element of proximate cause. McNair v. Richardson, 244 N.C. 65, 92 S.E.2d 459. Thus, in Campbell and Arnett the question was whether the defendant should have reasonably foreseen consequences of an injurious nature would likely result from the illegal parking of the vehicles. Here, there is neither allegation nor evidence that the bulldozer was illegally parked. Moreover, the fact the bulldozer was left in such condition it could be started by any unauthorized person capable of manipulating the starter and gears would not constitute negligence (Williams v. Mickens, supra) unless the circumstances were such that defendant should have reasonably foreseen that a trespassing child would likely get on the bulldozer and set it in motion. Under these circumstances, foreseeability is essential to the basic element of negligence.

"The law only requires reasonable foresight, and when the injury complained of is not reasonably foreseeable, in the exercise of due care, the party whose conduct is under investigation is not answerable therefor." Osborne v. Atlantic Ice & Coal Co., 207 N.C. 545, 177 S.E. 796. In Brady v. Southern R. R., 222 N.C. 367, 373, 23 S.E.2d 334, 339, Devin, J. (later C. J.), quotes with approval this statement: "One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable." See 65 C.J.S. Negligence § 5, pp. 361-362; 38 Am.Jur., Negligence § 24.

In summary: Defendant's bulldozer was parked, after dark, 35 to 40 feet from Grainger Avenue. It could be seen from Grainger Avenue. It could be set in motion by any person, adult or child, who intentionally and deliberately manipulated the starter and gears. There was no evidence defendant knew or should have known of any prior incident where a bulldozer so parked and equipped had been set in motion by any unauthorized person. There was no evidence that any child or children, in play or otherwise, had ever climbed upon the bulldozer or tampered with it in any manner or even observed it at close hand.

It now appears the bulldozer was started and set in motion by the intentional, deliberate and wrongful conduct of McKinne, a boy then subject to the Juvenile Court. But, "(f)oresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence. It is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated." Shearman and Redfield on Negligence, Revised Edition, § 24.

The conclusion reached is that the evidence was insufficient to support a finding that defendant's bulldozer was parked at such place and in such manner that defendant in the exercise of due care should have foreseen that a trespassing child would likely get on the bulldozer and set it in motion. While a possibility, such an occurrence would seem unlikely, improbable and remote.

While in sympathy with plaintiff's predicament, the evidence here discloses her injuries and damage were caused solely by the intentional, deliberate and wrongful acts of McKinne. Hence, the judgment of involuntary nonsuit must be affirmed.

Affirmed.

PARKER, J., dissents.