Jenrette Transport Co. v. Atlantic Fire Insurance
73 S.E.2d 481
N.C.
1952
Check Treatment
DjsNNt, J.

This аppeal turns on wbetber or not tbe plaintiff offered more tban a scintilla of evidence in tbe trial below in suppоrt of its allegation tbat plaintiff’s truck and some of tbe tanks wbicb were being transported, collided witb tbe side of tbe underpass. If no part of tbe truck or trailer collided witb tbe underpass, tbe plaintiff is not entitled to recover, irrespective оf any damage tbat may bave resulted from tbe tanks having collided therewith. Cf. Electric Co. v. Insurance Co., 229 N.C. 518, 50 S.E. 2d 295, where tbe cargo insurance policy contained no exclusion clause such as tbat contained in tbe present contract.

Tbe plaintiff is entitled to bave tbе evidence considered in tbe light most favorable ‍‌‌​‌​‌​​‌​‌‌‌‌​‌‌​‌‌​​‌‌‌​‌‌​‌‌‌​​‌​​​‌​​​‌​‌‌‌​‍to it and to tbe benefit of every reasonable inference to be drawn therefrom. Chambers v. Allen, 233 N.C. 195, 63 S.E. 2d 212; Carson v. Doggett, 231 N.C. 629, 58 S.E. 2d 609; Winfield v. Smith, 230 N.C. 392, 53 S.E. 2d 251. But, when tbe evidence is so considered, it must do more tban raise a suspicion, conjecture, guess, surmise, or speculation as to tbe pertinent facts in order to justify its submission to tbe jury. Denny v. Snow, 199 N.C. 773, 155 S.E. 874.

A verdict or finding must rest upon proven facts or uрon facts of wbicb there is substantial evidence. A verdict or finding in favor of one having the burden of proof will not be upheld if tbe evidence upon wbicb it rests *540 raises no more than mere conjecture, guess, surmise, or speculation. “There must be lеgal evidence of every material fact necessary to support the verdict or finding, and such verdict or finding ‍‌‌​‌​‌​​‌​‌‌‌‌​‌‌​‌‌​​‌‌‌​‌‌​‌‌‌​​‌​​​‌​​​‌​‌‌‌​‍must be groundеd on a reasonable certainty as to the probabilities arising from a fair consideration of the evidence, аnd not a mere guess, or on possibilities.” 23 C.J., pp. 51-52; S. v. Johnson, 199 N.C. 429, 154 S.E. 730; Denny v. Snow, supra,; Broughton v. Oil Co., 201 N.C. 282, 159 S.E. 321; Shuford v. Scruggs, 201 N.C. 685, 161 S.E. 315; Sutton v. Herrin, 202 N.C. 599, 163 S.E. 578; Plyler v. Country Club, 214 N.C. 453, 199 S.E. 622; Cummings v. R. R., 217 N.C. 127, 6 S.E. 2d 837; Mercer v. Powell, 218 N.C. 642, 12 S.E. 2d 227; Mills v. Moore, 219 N.C. 25, 12 S.E. 2d 661; Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406; Lumber Co. v. Elizabeth City, 227 N.C. 270, 41 S.E. 2d 761. As was said by the late Chief Justice Stacy, in S. v. Johnson, supra: “The general rule is that, if there be any evidence tending to prove the fаct in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury. But as was said in the eаse where a darky was being prosecuted for the larceny of a pig, there must be more than the argument of the soliсitor: ‘Gentlemen of the jury, there was a hog. Here is a negro. Take the ease.’ Wilson v. Lumber Co., 194 N.C. 374, 139 S.E. 760; Moore v. R. R., 173 N.C. 311, 92 S.E. 1.”

"What is the evidence in this case to support the finding that the plaintiff’s truck or trailer collided with the underpass ?

The evidence of Mr. Jenrette to the effect thаt about two weeks after this collision he examined the underpass and found certain “scarring” on ‍‌‌​‌​‌​​‌​‌‌‌‌​‌‌​‌‌​​‌‌‌​‌‌​‌‌‌​​‌​​​‌​​​‌​‌‌‌​‍the right pier about 7 feеt from the ground, has no probative value, and the defendant’s objection to its admission should have been sustained.

The plaintiff must rely upon the testimony of its driver, Roy Hargis, and the reasonable inferences that may be drawn therefrom to sustain the verdict on the first issue, and when his testimony is so considered, if it is insufficient to sustain the verdict, the defendant’s motion for judgment as of nonsuit must be allоwed.

This witness testified that no part of the tractor or trailer came in contact with the bridge either at the top or аt the sides. He also made a sworn statement to this effect to an agent of the defendant five days after the collisiоn occurred, and repeated it two or three times in his oral testimony at the trial.

Counsel for plaintiff was permitted by the court not to impeach this witness but to cross-examine him on the ground that he was hostile. Pursuant to this ruling, counsel tried diligently ‍‌‌​‌​‌​​‌​‌‌‌‌​‌‌​‌‌​​‌‌‌​‌‌​‌‌‌​​‌​​​‌​​​‌​‌‌‌​‍and with some suсcess to get the witness to characterize his signed statement as well as his testimony about what occurred at the time оf the collision as being merely his *541 opinion or a guess on bis part. Tbis added nothing by way of proof that plaintiff’s truck or trailer came in contact with the underpass, but merely tended to raise a doubt as to what did cause the collision and thereby lеave the ascertainment of the crucial facts in the case wholly to conjecture, surmise, or speculatiоn. Even so, while being so examined, the witness said: “When I seen the tanks, pulled over and looked it looked as if the top tanks hаd hit the bridge.” Moreover, he testified on cross-examination by defendant’s counsel, that two of the four or five large tanks that were standing up in the front of the trailer were bent close to the top; that he entered the underpass as near in the middle as possible and when he stopped, the rear end of the trailer was still under the underpass; that at the time of the сollision he was going only 12 or 15 miles an hour; that when he got off the truck, part of the stake-body of the trailer on his right-hand side had been broken off; that no part of the tractor or trailer came in contact with the bridge, and there was “no sign of a tractor or trailer going to the side, being forced over on the right.” Furthermore, he testified that the sworn statement that he made and signed before a Notary Public on 12 April, 1949, was correct “excepting that I couldn’t swear to what caused the tanks tо hit the underpassing.”

If, as this witness testified, no part of the truck or trailer came in contact with the underpass, and there seems to be no evidence to the contrary, unless it be by inference based on mere speculation or conjecture, it becomes immaterial whether the three stakes on the trailer were broken by the pressure of the tanks against them or by the pressure of the tanks against the chains by which they were held in place and tied to the sides of the trailer. In any еvent, the right-hand side of the platform of the trailer, including the steel band, or bands, which held the upright stakes in place, was not damaged.

The sworn statement referred to above was introduced in evidence by the defendants. However, in considering thе motion for judgment as of nonsuit renewed at the close of the entire evidence, the evidence of the defendаnt which is not in conflict ‍‌‌​‌​‌​​‌​‌‌‌‌​‌‌​‌‌​​‌‌‌​‌‌​‌‌‌​​‌​​​‌​​​‌​‌‌‌​‍with the evidence of the plaintiff, may be used to explain or make clear what has been offеred by the plaintiff. “This was the purpose of the Legislature in providing that such motion might be renewed at the conclusion of all the evidence.” S. v. Fulcher, 184 N.C. 663, 113 S.E. 769; Hare v. Weil, 213 N.C. 484, 196 S.E. 869.

The evidence adduced in the trial below, in our opinion, is insufficient to support the verdict. The motion for judgment as of nonsuit should have been allowed.

Reversed.

Parkee, J., took no part in the consideration or decision of this case.