McNair v. Boyette

189 S.E.2d 590 (1972)

Thomas B. McNAIR
v.
Edward Lee BOYETTE and Oscar Lee Hall.

No. 7210SC298.

Court of Appeals of North Carolina.

June 28, 1972.

Twiggs & McCain, by Howard F. Twiggs and Grover C. McCain, Jr., Yarborough, Blanchard, Tucker & Denson, by Charles F. Blanchard and James E. Cline, Raleigh, for plaintiff-appellant.

Maupin, Taylor & Ellis, by Armistead J. Maupin, Raleigh, for defendant-appellee, Edward Lee Boyette.

CAMPBELL, Judge.

Plaintiff assigns as error the trial court's entry of summary judgment in favor of defendant Boyette.

While it is conceded that summary judgment will not be as feasible in negligence cases, where the standard of the prudent man must be applied, as it would in other cases, summary judgment is proper where it appears that there can be no recovery even if the facts as claimed by plaintiff are true. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970). When the facts are admitted or established, negligence is a question of law and the court must say whether it does or does not exist and this rule extends to the question of proximate cause. Hudson v. Petroleum Transit Co., 250 N.C. 435, 108 S.E.2d 900 (1959).

Was plaintiff barred as a matter of law from recovery against defendant Boyette?

In order for there to be a recovery against a defendant, the defendant must be shown to be negligent and his negligence must be the proximate cause of plaintiff's injury. Clarke v. Holman, 274 N.C. 425, 163 S.E.2d 783 (1968). Proximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the injury and without which the injury would not have occurred, and from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result was probable under the facts as they existed. Adams v. State Board of Education, 248 N.C. 506, 103 S.E.2d 854 (1958); Grimes v. Gilbert, 6 N.C.App. 304, than one proximate cause, that which is 170 S.E.2d 65 (1969). If there is more new and entirely independent breaks the sequence of events and insulates the original or primary negligence and the test by which negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury. Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808 (1940).

"The decisions are all to the effect that liability exists for the natural and probable consequences of negligent acts or omissions, proximately flowing therefrom. The intervening negligence of a third person will not excuse the first wrongdoer, if such intervention ought to have been foreseen. In such case, the original negligence still remains active and a contributing cause of the injury. The test is to be found in the probable consequences reasonably to be anticipated, and not in the number or exact character of events subsequently arising. Lane v. Atlantic Works, 111 Mass. 136." Butner v. Spease, supra.

In Butner, Chief Justice Stacy quoted the following from Milwaukee & St. P. R. R. v. Kellogg, 94 U.S. 469, 24 L. Ed. 256:

"``We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the immediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must therefore always be whether there was any intermediate cause, disconnected from the primary fault and self-operating, which produced the injury.'"

Plaintiff alleges that defendant Hall was negligent in that he failed to keep a proper lookout, failed to reduce his speed where a special hazard existed on the highway, failed to stop his vehicle when he saw or should have seen plaintiff with a flashlight warning motorists, failed to stop his automobile within the radius of its headlights and operated his automobile at a speed greater than was reasonable and prudent under the conditions then existing.

Does the negligence of Hall constitute an independent negligent act which was the proximate cause of the injuries to plaintiff? It is our opinion it does.

Hall's alleged negligence was independent of Boyette's alleged negligence; it caused an injury which would not otherwise have occurred and it resulted in injury to plaintiff after the alleged negligence of Boyette had ceased to operate. Boyette could not foresee Hall's negligent act. Plaintiff was not engaged in rescuing Boyette as he had already ascertained that Boyette was not injured and needed no help. Plaintiff was engaged in directing traffic when he was injured by the alleged negligence of Hall.

Plaintiff alleges, in substance, that Hall should have seen the hazardous situation on the highway and taken proper action to avoid striking plaintiff.

"``Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause. . . .'" Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88 (1938). Likewise, see Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919 (1954).

The condition created by Boyette was merely a circumstance and not the proximate cause of plaintiff's injury.

In a factually similar case, the Virginia Supreme Court of Appeals ruled in favor of the defendant originally negligent when several people, including plaintiff, got out of their automobiles following a collision with said defendant and were struck down by a second negligent driver. Wallace v. Jones, 168 Va. 38, 190 S.E. 82 (1937).

For the above reasons we hold that the trial court was correct in entering summary judgment in favor of defendant Boyette.

Affirmed.

MALLARD, C. J., concurs.

BRITT, J., dissents.