Ham v. Greensboro Ice & Fuel Co.
169 S.E. 180
N.C.
1933
Check Treatment
BbogdeN, J.

Tbe distressing details to be interpreted are substantially as follows: An ice truck drives up to a home to deliver ice. Tbe street is paved and thirty feet wide. On tbe opposite side of tbe street a crowd *617 of little children are playing in a sand pile on the sidewalk and in the edge of the street. The deceased, unattended by any older person, is in the group. Apparently, the children have their toys with them. The driver and his father take the ice into the home and return to the truck. Before they get into the truck they look to the front and back and see no children. The truck is so constructed that they could not see under it without bending half way down. They mount the truck, and then look forward and backward, and through the glass in the rear thereof. The father suggests to the driver that it is wiser to back the truck than to move forward for the reason that to move forward the truck would have to be operated through a group of children, but by moving backward away from the children this danger would apparently be avoided. Consequently, they backed the truck, and before the truck had moved the space of its own length, the driver hears a bump. He immediately stops, and upon investigation, finds the little two-year old child under the front of the truck with its head crushed.

Upon the foregoing facts, the first question of law to arise is: Was there sufficient evidence of negligence to be submitted to a jury?

It was admitted that the driver, in violation of an ordinance, was operating the truck without a license. It was admitted that when the truck drove up to the residence it was not parked exactly parallel with the curb but at a slight angle, and thus violating a city ordinance. It was admitted that the truck backed away from the home instead of moving forward, thus violating another city ordinance.

All of the decisions of this State since Ledbetter v. English, 166 N. C., 125, 81 S. E., 1066, concur in the view that the violation of an ordinance or of a statute designed for the protection of life and limb, is negligence per se. Notwithstanding, the same decisions do not permit recovery for the mere violation of the statute, unless there was a causal relation bgr tween the violation and the injury. In other words, mere negligence does not warrant recovery. Recovery must grow out of actionable negligence, and negligence is not actionable until there is evidence of causal relation between the negligent act and the resulting injury. Moreover this causal relation is not presumed from the injury itself. Thus, in Rountree a. Fountain, 203 N. C., 381, where a truck backed over a child in an alley, the Court said: “The plaintiff had the burden of establishing the proximate causal relation of the alleged negligence to the injury and death, and in his search for it he is led into the uncertain realm of conjecture.” The breach of a statute as an element of negligence was construed in Austin v. R. R., 197 N. C., 319, 148 S. E., 446. The Court said: “There is evidence that the deceased was required to work in breach of this statute. But this requirement did not make the defendant unconditionally liable in damages. The necessary element of liability *618 is some causal relation between the employee’s working over time and the injury he receives.” The bare fact that the driver of a truck or automobile was not licensed does not create liability for personal injury. Peters v. Tea Co., 194 N. C., 172, 138 S. E., 595. The failure to park a truck alongside a curbing rather than at a small angle would apparently have no bearing on an injury sustained by the subsequent movement of the truck.

The evidence leaves no doubt as to the fact that the little child crawled under the truck while the driver was delivering ice and was concealed thereunder when the driver returned to resume the operation thereof. The evidence of careful lookout ,is uncontradicted, and the failure of the driver to bend down and look under the truck cannot be held for actionable negligence when all other ordinary and reasonable elements of prudent lookout and inspection have been observed.

The final inquiry is whether backing the truck, under the circumstances, in violation of the statute was sufficient evidence of proximate cause to be submitted to the jury. The evidence discloses that the front wheel of the backing truck killed the child. If the driver had moved forward, doubtless the rear wheel of the moving truck would have accomplished the same unfortunate result. The father of the driver said: “If we had gone forward, we would not have run over this little child.” Manifestly, such statement was a conclusion of the witness and is to be interpreted in the light of all the uncontradicted evidence. What was the position of the child when the truck moved? Did the position change while the truck was in motion ? Inferences, theories, and deductions rise and run with the shifting turns of interpretation, but the proof of actionable negligence must rest upon a more solid foundation than bare conjecture. Grimes v. Coach Co., 203 N. C., 605. Therefore, it is the opinion of the Court that the motion for nonsuit should have been allowed.

Reversed.

Clarkson, J., dissents.