Clark v. Lambreth , 235 N.C. 578 ( 1952 )

70 S.E.2d 828 (1952) 235 N.C. 578

CLARK
v.
LAMBRETH.

No. 381.

Supreme Court of North Carolina.

May 21, 1952.

R. A. Hedrick, J. G. Lewis, Statesville, for plaintiff-appellant.

Scott & Collier, Statesville, Smathers & Carpenter, Wm. B. Webb, Charlotte, for defendant-appellee.

WINBORNE, Justice.

This is the pivotal question. Considering the evidence shown in the case on appeal contained in the record, in the light most favorable to plaintiff, is there sufficient evidence to take the case to the jury? The trial court did not consider it sufficient and, with his ruling, we agree.

This case is controlled by principles of intervening negligence applied in decisions of this Court in Smith v. Sink, 211 N.C. 725, 192 S.E. 108; Powers v. Sternberg, 213 N.C. 41, 195 S.E. 88; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808.

In Smith v. Sink, supra, opinion by Stacy, C. J., it is stated that "In negligence cases, it is proper to sustain a demurrer to the evidence and to enter judgment of nonsuit: 1. When all the evidence, taken in its most favorable light for the plaintiff, fails to show any actionable negligence on the part of the defendant. * * * 2. When it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person." Cases are there cited in respect to each principle.

In Smith v. Sink, it is also said: "We had occasion to examine anew this doctrine of insulating the conduct of one, even when it amounts to passive negligence, by the intervention of the active negligence of an independent agency or third party, as applied to variant fact situations, in the recent cases of Beach v. Patton [208 N.C. 134, 179 S.E. 446]", and others cited. Then, continuing: "These decisions, and others, are in full support and approval of Mr. Wharton's statement in his valuable work on Negligence (sec. 134): `Supposing that if it had not been for the intervention of a responsible third party the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject-matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured.' " Then there follows, to like effect, a quotation from Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469, 24 L. Ed. 256.

And in Powers v. Sternberg, supra [213 N.C. 41, 195 S.E. 89], this Court said: "Even if it be conceded that defendant's truck was negligently parked on the side of the road * * * which may be doubted on the facts revealed by the record * * * still it would seem that the active negligence of the driver of the Bedenbaugh car was the real, efficient cause of plaintiff's intestate's death". And, again, "The parking of the truck, if a remote cause, was not the proximate cause of the injury. * * * The conduct of Wallis would have produced no damage but for the active intervening negligence of Bedenbaugh. This exculpates the defendants."

In the light of these principles, even if it be conceded that the truck of defendant was negligently parked on the side of Shelton Avenue, which may be doubted on the facts revealed by the record, it would seem that the active negligence of the operator of the Clark truck was the real, efficient cause of the death of plaintiff's intestate. It is clear that the operator of the Clark truck was driving either without sufficient lights, or without keeping proper lookout ahead, when there was nothing on the street to prevent him seeing the parked truck. It is also clear that there was abundant space for the Clark truck to pass the parked truck in safety.

Consideration has been given to other exceptions, and error is not made to appear.

While as in Hammett v. Miller, 227 N.C. 10, 40 S.E.2d 480, the case presents a deplorable, tragic, and untimely ending of a young life, the evidence is insufficient to support a finding that it was proximately caused by the parking of the truck of defendant. Other causes are apparent.

Affirmed.