Regan v. Player , 13 N.C. App. 593 ( 1972 )

MORRIS, Judge.

Each defendant excepted to and has assigned as error the refusal of the court to allow motions for directed verdict and for judgment notwithstanding the verdict.

The evidence is uncontradicted that plaintiff was guilty of no negligence, nor does any defendant contend that plaintiff was guilty of contributory negligence. It is conceded by all parties that his vehicle was in a stopped position in the left turn lane with his left turn signals on and that he was awaiting the opportunity of making a left turn onto Manor Drive when the vehicle was struck by the Player vehicle.

Plaintiff testified that he first saw the Player vehicle or the lights therefrom, as it was coming over the hill, some 150 to 200 feet away. At that time, the Marion vehicle was still moving. “As to how long a period of time it was from when I first saw the Player vehicle approaching me from an opposite direction until the vehicle hit me, it was about 5 or 6 seconds, something like that.” Plaintiff further testified that Player was doing the speed limit or better, that the speed limit was 45 miles1 per hour, and that he was knocked back “at least 50 or 75 feet, east up Greensboro Road.” . I saw the headlights coming, toward me and all of a sudden they just hit me.” The Player vehicle struck the left front of plaintiff’s vehicle. There is no traffic light at the intersection. Plaintiff never saw the Marion car come to a full stop at the intersection. The last time plaintiff saw the Marion car, the whole hood of the car was out in the intersection. Both drivers said they did not see the plaintiff. Plaintiff testified that there is a “stop light” at Manor Drive facing northbound traffic.

The investigating officer testified that the Player car left skid marks of 96 feet and that the plaintiff’s car was “sitting approximately 75 feet back from the Greensboro Road in the eastbound lane.” He estimated the distance from the hillcrest to the intersection at 150 feet. The Player car stopped at about the point of impact. The officer testified there was a stop sign on Manor Drive. He detected an odor of alcohol on Player, noted it on his report, but did not think Player was under the influence.

When the evidence is viewed in the light most favorable to plaintiff, giving him the benefit of every reasonable inference which may legitimately be drawn, resolving all conflicts and inconsistencies in his favor, we are of the opinion that the court properly submitted the case to the jury as to both defendants. Walker v. Pless, 11 N.C. App. 198, 180 S.E. 2d 471 (1971).

Each defendant has excepted to and assigns as error portions of the charge of the court. In the plaintiff’s action against all defendants the following constitutes the court’s entire charge on proximate cause: “A proximate cause is the cause that directly brings about the injury, either immediately or through happenings which follow one after another.” In instructing the jury with respect to Player’s cross action against Marion, the court did not give any instructions with respect to proximate cause.

In Barefoot v. Joyner, 270 N.C. 388, 154 S.E. 2d 543 (1967), the Court approved the definition of proximate cause given in Nance v. Parks, 266 N.C. 206, 146 S.E. 2d 24 (1966) :

“Proximate cause is ‘a 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.’ Mattingly v. R. R., 253 N.C. 746, 750, 117 S.E. 2d 844, 847. Foreseeable injury is a requisite of proximate cause, which is, in turn, a requisite for actionable negligence. Osborne v. Coal Co., 207 N.C. 545, 177 S.E. 796.” 270 N.C. at p. 393.

In Ratliff v. Power Co., 268 N.C. 605, 614, 151 S.E. 2d 641 (1966), Justice Lake, for the Court, in discussing proximate cause and foreseeability, said:

“An event which is a ‘but for’ cause of another event— that is, a cause without which the second event would not have taken place — is not, necessarily, the proximate cause of the second event. While one event cannot be the proximate cause of another if, had the first event not occurred, the second would have occurred anyway, Henderson v. Powell, 221 N.C. 239, 19 S.E. 2d 876, the reverse is not necessarily true. A ‘but for’ cause may be a remote event from which no injury to anyone could possibly have been foreseen. Foreseeability of some injury from an act or omission is a prerequisite to its being a proximate cause of the injury for which the plaintiff seeks to recover damages. Nance v. Parks, 266 N.C. 206, 146 S.E. 2d 24.”

A proper definition of proximate cause is mandatory. Keener v. Litsinger, 11 N.C. App. 590, 181 S.E. 2d 781 (1971). Certainly under the facts of this case, defendants were prejudiced by the court’s failure properly to define proximate cause, including the element of foreseeability of injury as a prerequisite thereof.

We are cognizant of the fact that the evidence at the next trial may be different in material respects. We, therefore, refrain from discussing, on the basis of evidence presently before us, questions presented by other assignments of error — some common to both defendants, others brought forward by either Marion or Player. For prejudicial error in the charge, discussed herein, both defendants are entitled to a

New trial.

Chief Judge Mallard and Judge Parker concur.