Gold v. Kiker , 216 N.C. 511 ( 1939 )

Winborne, J.

Tbe only exceptive assignment on tbis appeal is to •judgment as of nonsuit. C. S., 567. Tbis presents two questions: (1) Is there sufficient evidence of actionable negligence on tbe part of (a) defendants Ames & Webb, Inc., and (b) defendants Kiker & Yount to require the submission of an issue or issues to tbe jury witb respect thereto? (2) Is there sufficient evidence of negligence on tbe part of tbe driver of tbe truck in which intestate was traveling at tbe time of bis injury and death as insulates any negligence on tbe part of tbe defendants, or either of them, as a matter of law?

Tbe first is answered “Yes” and tbe second “No.”

(1) In order to establish actionable negligence, “Tbe plaintiff must show: First, that there has been a failure to exercise proper care in tbe performance of some legal duty which tbe defendants owed tbe plaintiff, under tbe circumstances in which they were placed; and, second, that such negligent breach of duty was tbe proximate cause of tbe injury— a cause that produced tbe 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 result was probable under all tbe facts as they existed. Whitt v. Rand, 187 N. C., 805, 123 S. E., 84; Ramsbottom v. R. R., 138 N. C., 39, 50 S. E., 448.” Templeton v. Kelley, 215 N. C., 577, 2 S. E., 2d, 696.

Measured by tbe requirements of these principles, tbe evidence in tbe instant case, considered in tbe light most favorable to plaintiff, is sufficient to take tbe case to tbe jury on tbe issue of actionable negligence as above defined. Tbe contractual obligations assumed by each of tbe defendants as reflected in tbe provisions quoted in tbe above statement of tbe case provide evidence of legal duty which tbe defendants, and each of them, owed to plaintiff intestate, and others traveling tbe highway, to exercise ordinary care in providing and maintaining reasonable warnings of and safeguards against conditions existent at tbe time and place in question — a duty which originated upon tbe award of tbe contract and continued until tbe final acceptance of tbe work by tbe State Highway and Public Works Commission.

(2) A nonsuit may not be granted on tbe ground of insulation of negligence unless “it clearly appears from tbe evidence that tbe injury complained of was independently and proximately produced by the wrongful act, neglect or default of an outside agency or responsible third person.” Stacy, C. J., in Smith v. Sink, 211 N. C., 725, 192 S. E., 108, and eases cited. See, also, Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Ferguson v. Asheville, 213 N. C., 569, 197 S. E., 146.

“Foreseeability is tbe test of whether the intervening act is such a new, independent and efficient cause as to insulate the original negligent act. That is to say, if the original wrongdoer could reasonably foresee the intervening act and resultant injury, then the sequence of events is not broken by a new and independent cause, and in such event the original wrongdoer remains liable.” Brogden, J., in Hinnant v. R. R., 202 N. C., 489, 163 S. E., 555. See, also, Harton v. Tel. Co., 141 N. C., 455, 54 S. E., 299; Herman v. R. R., 197 N. C., 718, 150 S. E., 361; Beach v. Patton, 208 N. C., 134, 179 S. E., 446.

Where two or more proximate causes contribute to the injury, a defendant whose negligent act brought about one of such causes is liable. Albritton v. Hill, 190 N. C., 429, 130 S. E., 5; Campbell v. R. R., 201 N. C., 102, 159 S. E., 327; Johnson v. R. R., 205 N. C., 127, 170 S. E., 120; Lewis v. Hunter, 212 N. C., 504, 193 S. E., 814.

Applying these principles to the ease in hand, evidence appears from which the jury may find that, even though the driver of the truck be guilty of negligence contributing to the accident, the conditions existent at the time and scene of the accident were such that an ordinarily prudent person in the exercise of due care could foresee the intervening act and resultant injury. These are questions for the jury under appropriate instructions by the court.

The judgment below is

Reversed.

BaeNhill, J., concurs as to the defendants Ames & Webb, Inc., but dissents as to the defendants Hiker & Yount.