Martin v. Jewel Box of Asheboro

Mobris, J.

Defendant, among others, assigns as error the overruling of his motion for judgment of nonsuit.

Our review of the evidence leads us to the inescapable conclusion that the plaintiff has failed to show any causal connection between her alleged injuries and the alleged negligent act, if, indeed, she has shown any negligent act. Plaintiff produced no expert testimony, either medical or with respect to the contents of the fluorescent tube. She alleges in her complaint that the breaking of the tube set up phosphors light powder which contained beryllium and other unknown poisonous substances. Her evidence is completely devoid of any proof of what elements the tube, or powder, contained or whether whatever it contained was or could be harmful if inhaled.

If it be conceded that plaintiff has sufficiently shown that defendant was negligent in placing the tubes in the garbage can, the question still remains as to whether this alleged negligence was the proximate cause of plaintiff’s injuries. There must be causal relationship between the breach of duty by defendant and the injury received by plaintiff. Reason v. Sewing Machine Co., 259 N.C. 264, 130 S.E. 2d 397 (1963).

In the Reason case, plaintiff had alleged that she received serious and permanent injury to her eyes from oil sprayed from a sewing machine. There was medical testimony that hot oil could have caused the disease or that unheated oil might, depending upon its chemical composition. There was no evidence that the oil was hot nor was there evidence of its chemical composition. The Court affirmed the trial tribunal’s granting of motion for judgment as of nonsuit and quoted from the case of Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E. 2d 392 (1955), where plaintiff had alleged injury resulting from a poisonous substance in a hair rinse. There the Court, in sustaining a nonsuit, said, “It may be there was a poisonous substance in the hair rinse, but there is no evidence to support such a conjecture.”

There is no evidence of the nature of plaintiff’s illness, except her own evidence that she was very nauseated and could not eat for a long period of time. Neither is there any medical evidence as to whether plaintiff’s illness was of such character that it could or would probably, in the light of medical experience, be caused by inhaling the chemical components of the fumes or powder resulting from the breaking of the fluorescent tube. Reason v. Sewing Machine Co., supra.

Defendant’s other assignments of error are not discussed since we reach the conclusion that plaintiff’s evidence is not sufficient to establish actionable negligence and the motion for nonsuit should have been granted.

Reversed.

MallaRD, C.J., and Hedrick, J., concur.