Evans v. Shea Bros. Construction

Jun 10, 1927

Versions:194 N.C. 31

138 S.E. 411

1927 N.C. LEXIS 9

ClaeksoN, J.

In Hughes v. Lassiter, 193 N. C., р. 650, this Court has recently discussed matters ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍presented in this action, and it is unnecessary to repeat.

It was contended in tbe present аction by defendants that tbe road on which tbе alleged injury occurred was not a detоur- road. Tbe plaintiff left tbe main highway and travеled a dangerous road not openеd. Tbe charge goes too far, and is prejudicial. Tbe jury should have been ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍instructed that, under all tbe facts and circumstances of tbе case, it was their province to detеrmine whether defendant failed to exerсise ordinary care — that degree of care which a prudent man should use and exercise under like circumstances and charged with like duty.

“In order to establish a ease оf actionable negligence in a suit like tbе present, tbe plaintiff must show: First, that there has been a failure to exercise proper care in tbe performance оf some legal duty which tbe defendant 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 produсed tbe result in continuous sequence and without which it would not have occurred, and onе from which any man of ordinary prudence could have foreseen that such a -result was probable under all tbe facts as they existed. Ramsbottom v. R. R., 138 N. C., 41.” Whitt v. Rand, 187 N. C., at p. 808.

In White v. Realty Co., 182 N. C., at p. 538, it is held: “His Honor correctly charged tbе jury that if tbe negligence of MeQuay, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tbe ownеr and driver of tbe Ford car, was tbe sole and only proximate cause of *34 plaintiff’s injury, tbe defendant would not be liable; for, in that evеnt, tbe defendant’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍negligence would not bavе been one of tbe proximate causes of tbe plaintiff’s injury. Bagwell v. R. R., 167 N. C., 615. But if tbe degree, however small, of tbe causal negligence, or that without which tbe injury would not bave occurred, be attributable to tbe defendant, then tbe plaintiff, in tbe absence of any contributory negligеnce on bis part, would be entitled to recover, because tbe defendant cannot be excused from liability unless tbe total causal negligence, or proximate cause, be attributable to another, or others. ‘When two efficient proximate causes contribute to an injury, if defendant’s negligent act brought about one of such causes, be is liable.’ Wood v. Public Corp., supra (174 N. C., 697), and cases there cited.” Albritton v. Hill, 190 N. C., 429; Hanes v. Utilities Co., 191 N. C., 13.

For tbe reasons given, there must be a

New trial.