*1 TERM, 1963. v. — public taxation and Appeal funds. See: 117 Anno. A.L.R., — Board, 216-222; Public Officer or pp. 5 A.L.R. Anno. Under- 2d, assessment for Taxation, pp. 576-582.
It is true that
have
authority
courts
inherent
to review the ac
any
tions of
agency
administrative
whenever such
affect per
actions
sonal
property rights,
-prima
upon
jade
showing, by petition for
certiorari, that such аgency
capriciously
acted arbitrarily,
has
or in
disregard of law. Pue v. Hood, Commissioner Banks,
896. But
discretionary
certiorari is a
writ. State v. Grund
ler, 251
2d 390. ap the Commissioner was prosecute well advised to peal in this case.
The judgment below is reversed and the case is remanded to the superior court for the appeal Commissioner’s merits.
Error and remanded. MAYNARD LEE WALTER WILLETTS MURPHY KINLAW HOR Trading Doing KING, T. ACE NEW HANOVER IRON Business WORKS. 1963.) (Filed 14 June Negligence 24a—§ northing which establishes more than Evidence an accident and an jury, is insufficient must introduce tending competent evidence to show failure defendant’s to exercise that reasonably prudent person degree of care which would have exercised proximate
under like circumstances and that such failure was the proximate injury. causes 2. Trial 21—§ nonsuit, the evidence and On motion to inferences there- plaintiff.
from must be considered most favorable to IN THE COURT. SUPREME
Kinlaw v. Willetts. negli- show held insufficient 411— Evidence Automobiles 3. §§ pe- plaintiff proximate gence of of defendant destrian. engaged plaintiff with other show that evidence tended to The beginning sign erecting highway be- a median at of wоrkmen highway connecting highway anat another and an access road tween overpass, truck, flush with that tool boxes defendant drove fenders, passed, plaintiff past sus- and that as the truck the locus and of between the elbow a wound about size coin tained breaking wrist, penetrating them. Held: In the absence to the bones and any objеct beyond protruded of of the fenders evidence any part truck, or of and of the actual between contact actually wound, proper. nonsuit was inflicted the 24a; Negligence 25— Trial § § negligence may of drawn from The inference be facts evidence may such based on other inferences. inference Pakkek, J., dissenting.
Aрpeal by plaintiff J., October, Term, Bickett, Robeson Superior Court.
The plaintiff instituted civil damages action to recover personal injury alleged proximately to have been caused de- negligence. At time fendants’ of the and an- prisoner, Tew, serving other Charles were road sentences for vio- They the -criminal at of law. were work under the lations direction Highway employees, two Clemmons State H. W. and J. W. Carter. engaged replacing sign These four were traffic short -connecting north-south Highway or access road State No. 132 cutoff Wilmington. No. near and east-west U. S. The access was necessary by reason of the fact that No. crosses 17 on made No. оverpass. plaza The road was divided or median about five feet access asphalt about elevated six inches -above surface. This wide and margin plaza began on the east of 132 south of the overhead median or along its bridge joinder extended some distance -center towards replacing the four men were -sign 17. The with Nо. edge median near eastern of 132. Clemmons was western end -sign place. post supporting plaintiff, the wooden prisoner, were Tew, using employee Carter, shovels and concrete, asphalt dirt, pieces around broken replacing were within a few feet each other. four workers post. TERM, 1963. According evidence, Willetts, driving north defendant Works, in the Ford pickup truck Iron employer, New Hanover approached point work 10:30 where the men were about at morning May 9,1961. dry, The weather and the road was was clear straight, 'and yards. level to the south for several hundred Willetts approached at pass- the men work, he slowed down at the time ed the men he wаs driving per hour. much of the miles So is not in conflict.
Quoted pertinent here testimony. is the part On “I direct examination: the northernmost *3 plaza plaza between the and a yellow my hand, line with shovel shoveling the concrete stuff I go post. facing South, to around the was my face half plaza high- and half toward the and toward way. My back any was tоward the I didn’t see motor vehicle highway, approaching any I direction, one, did hear but I pay any didn’t attention Highwaj*- to it. No. 132 is two-lane highway, traveling cars highway. both North and South on that I heard the motor vehicle approaching, I shoveling any was and did move in not direction in order yellow not back out of the line surrounding When it I shoveling grabbed hit me was and I my arm turned and around and the man up saying carry truck backed he would me to my After hit I hospital. arm first saw the was truck about 75 yards away, there nowas other motor vehicle on the highway at that I It do time. not know what make was or model. There was box built on each side of the they carry truck where tools. “Question. you you not you? Do do know what hit I Nо, Sir, “Answer: not. do my was a right midway
“There hole knocked in between my my and as big elbow wrist around half I as a dollar, could see pieces spattered of bone.” “All
On cross-examination: of us around that post within three feet of each other. Four or five automobiles or other motor vehicles working while were there I passed. just we heard оne before I was anything I but I knowed it hit. didn’t hit me. I any didn’t see motor it hit but when did I vehicle when me it turned around. IWhen was hit shoveling up pieces bending I of concrete was over. I had to shovel plaza get up gravel put side of the down the it in the My hole. out enough get arm wouldn’t -have been extended hit there where I standing. I know how much was don’t of the truck part or what of I did not it me. see when it hit truck had I me. did not look . did traffic. . . shovel under the wheel and the wheel IN THE SUPREME COURT.
Kinlaw v. Willetts. my my did not shovel my against throw it hit arm the truck. When right facing fell I impact down side my arm. At the time of the was I plaza post. toward the so I put the in the hole around could stuff standing something plaza. . . . was two feet from the raised around My right right arm hit I made a statement it, side truck. superintend- presence Superintendent, presence prison ent of of the truck camp. I said I did not know what sharp dropped my pain, made contact with I I arm. said felt grabbed my what hit me.” shovel arm. didn’t know Clemmons, Highway employee, Murphy Mr. testified: “At the time picking up Lee Kinlaw stuff that had been knocked out post putting post was knoсked down and where had around post shoveling it. He he was on the side rock and ¡the right holding post debris down iside of island. was .the and was facing Northwesterly top di- island. was putting Lee Kinlaw was rection, facing Murphy the end of the island. post packing it around there. When dirt around the down along came arm out across the truck came across didn’t sеe it when in front me and said the truck arm. a truck from where was on the hit nor didn’t hear it. saw stopped North on 132. The truck .going up the road island, up.” backed *4 “I had a Carter, Department, testified: shovel Highway
Mr. in hand and Murphy Kinlaw had a shovel in Lee his hand, Clemmons, I think Mr. a in his hand. prisoner had shovel I Murphy him. didn’t hear Lee equipment with foreman, had some I being hit, did see him say anything Kinlaw about truck, awas, something, or when whatevеr happended, after it facing the direction from which the the time I was him. At struck approached.” the truck as it approaching and didn’t notice truck was elevation, this which approached I “As testified: The defendant yards bridge, from the I saw three or or approximately traveling approxi- I standing on the traffic circle. four immediаtely slowed down an hour. I forty miles mately to pulled over the center line the island people approached wheel lines. left was over next yellow with two white which island, on the trafile wheth- people passed these to the line. know, them I don’t three of for didn’t than or less more there were er they doing because it wasn’t tell I couldn’t them. count highway and there was no reason out on me, wasn’t pertaining standing them observe me to for thud, a heard sounded a like people car ran these passed “As something road. Sounded like the wheel stick a rock over TERM, KiNlaw
of the .car hit something. approximately At going that time was miles -an Upon slight thud, hour. back looked mirror and saw this road. running fellow across the holding his arm gentlemen Some forward; is, ran across the road backward and ramp road. The other their people, performing other men were still duties paying any running attention to the man around.”
For the defendant, Patrolman, “I J. C. testified: Taylor, checked the truck, truck, any place Mr. if I could find Willett’s give truck arm struck the and I indication where his found none, nor did find marks on the where the shovel came in contact with the side of truck.”
Medical evidence of by stipulation was entered in the plaintiff’s only record. a depression consisted of circular wound about the coin, penetrating to, size shatter- ing -right the bones in half-way between the elbow wrist. The sufficiently deep fragments wound was to disclose of the broken bones. The evidence of Carter defendant dis- immediately closed that after Willetts the entrance access road the the east traffic lane of 132 holding injured forearm. At the close of all the evidence the judgment court entered in- voluntary nonsuit, appealеd.
Barrington
Britt
Barrington, Jr.,
&
J. H.
plaintiff appellant.
for
Page
appellees.
E.
defendants,
Ellis
escape
In order
in a negligence
J.
nonsuit
case, plain-
Higgins,
direct,
offer evidence either
tiff must
circumstantial,
aor
combination
tending to
that the
both,
show
defendant
failed to exercise that de-
safety
for the
gree
reasonably
care
prudent man
wоuld
like circumstances
exercise
charged
under
like
duty; and that the defendant’s failure was the cause,
under
or,
certain
injury.
the causes of the
circumstances,
The defendant’s failure
acts;
negligent
negligent
act or
or of a
may consist of
failure to act
*5
legal duty
Tyson
Ford,
v.
do so.
228
47
778,
if under
N.C.
2d
S.E.
337,
243
251;
Clay,
727; Boyd
N.C.
90
S.E. 2d
v. Harper,
Williamson
598;
v. Bryan,
108
Lane
246
334,
S.E.
N.C.
N.C.
97 S.E.
the
evidenсe,
The
from it,
2d 411.
must
inferences
plaintiff.
most favorable
considered in
Wilson v.
Evidence,
S.E. 2d 743.
however,
es-
Camp, an
nothing
injury
more than
accident and an
is insufficient
tablishes
IN THE
COURT.
SUPREME
852;
go
jury.
Crawford,
Robbins v.
The parties evidence of the in this is not in conflict. case serious a road plaintiff working others, erecting testified he with three east sign point at or near an entered from where access road driving pickup a Ford defendant, into State No. 132. The men truck where the highway, passed point north on the State injury passed, plaintiff at work. sustained truck wound right penetrating forearm which of a his consisted The the forearm. coin, breaking size of both bones he know what hit plaintiff said the truck hit him. Pie also said didn’t The еvidence indi- passed. him but the when the truck occurred investigating truck. The cated there were tool boxes on nothing truck at the scene. He testified there was officer examined the any object. Neither was indicating on the truck recent contact body any protrusion beyond the and the there truck’s fenders actually plaintiff line testifiеd he did was in with the fenders. passed. it Clemmons nor Carter until after Neither see the truck any object, al- heard contact between the truck and saw or though prisoner, Tew, another were within two or the three memand Immediately passed, plain- after the truck three feet each other. exhibiting puncture fresh in the road tiff was driving he passed as he The defendant testified wound. 132; line he to the marked middle felt possible near as or — — object thought he rock over some of his wheels run mirror, his rear-view saw looking back in testified: “I don’t know how holding his arm. the road truck had me. I did not the truck what much or shovel did not under the wheel.” it hit me. . . . it when testimony is obvious the statements the From truck based the fact the are his conclusions occurred as the hit him permits inference that something The evidence con- passed. moving plaintiff’s injury. truck inflicted the with the What nected round, penetrating wound into- the plaintiff’s actually inflicted leaving so much as another without scratch on middle It seems obvious that such a wound body, undisclosed. inflicted on working on the side of rоad or could be in- a man shaft, some small a missile spear hurled directly flicted Nothing of such a protruded mid-forearm. character against truck. happen? The defendant, accident at 15 miles did How so far lane, as the discloses, traffic in his felt one hour per *6 TERM, 603 1963. Kotlaw
o,f his wheels run over something pieces like a of con- rock. Broken crete and broken asphalt by were on the road rocks scattered force which sign. shovels,, down the Four men, knocked three placing three post. material around All were within feet of each other. Clemmons held in He post place. doesn’t know what happened. Carter was at work with a shovel. He know what doesn’t happened. him, thinks some but obviously part, frankly doesn’t know what so states. But what about Tew? He was there at work with a shovel. He was not court. The truck did not strike either plaintiff’s or the shovels. How- Carter’s ever, no one testified or apparently happened knows what has Tew’s shovel. Whether the truck hit shovel, Tew’s the end handle into the arm, whether one of the truck wheels propelled stone, piece small asphalt, inflicting of broken concrete or questions are injury, material case. The evidence does not object answer them. Not inflicted the but where injury, are propelled, speculation it came from and how it left to facts; guess. Legal may inferences be drawn from but inferences may permits based other chain of not be inferences. The causation in- facts, they be if are based on ferences to drawn supra. proof Bryan, is Lane v. inferences the chain broken. concluding Boyd paragraph 334, v. 250 Harper, N.C. 108 598, disposes legal questions 2d involved in this case:
S.E.
“
presumed
is not
‘Negligence
from the mеre
plain-
fact that
intestate was killed in the
tiff’s
collision.’ Williamson Randall,
v.
25,
20,
622, but the required, may same inferred from facts and at- Etheridge Etheridge, tendant circumstances. v. 222 618, 616, N.C. But a case such as this, the must es- facts and attendant circumstances reasonably tablish war- inference that the dеath of his intestate rant proximately negligence the actionable caused defendants. Robbins Crawford, supra; Whitson v. 240 Frances, v. N.C. Marley, v. 879; Sowers
S.E. S.E. 2d 670. In 47, 53, Wilson, v. 2d 258; Parker J., Parker, Court, said: ‘Such inference speaking for cannot rest on con- Marley, supra. jecture or surmise. Soioers “The inferences con- logical are reasonably this rule inferences templated sustained evidence, most considered favorable by supra. Frances, “A Whitson action plaintiff.” IN THE SUPREME COURT. *7 Kiwlaw guess.” Bryan, Lane v. something must be more than a guess- possibilities A is 97 S.E. resort to a choice oí Walgreen work Co., not decision. Hanrahan jury plaintiff must offer To carry S.E. 2d 392. case to conjecture the realm of to take the case out of sufficient established facts.’ and into the field of inference from Stegall 718, 722, 115.” Sledge, also See entered at the conclusion of judgment involuntary nonsuit all is the evidence
Affirmed. of the de Maynard Willetts, one J., dissenting.
PARKER, Walter “I was examination follows: fendants, part on direct testified in mounted with two boxes on side operating red, 1957 Ford sitting top up on purpose carrying parts, for tools and at all. The truck was the fender protruding fender but not over tool fenders. The boxes front fenders to back same width from top body which came out mounted on four feet from the bound * ¡heard thud, people flush with the fenders." "As these something like or stick road. sounded a car ran over rock something. At that time was like the wheel of car Sounded slight thud, Upon 15 miles hour. going approximately and saw this fellow his arm in the mirrow looked back * observing gentleman running *Upon running the road.'" across gas go ahead, then looked back on the road, mashed across the pull stop; immediately I’d so decided better through the mirror and shoulder, up, stopped the truck walked backed ed over at that time on the had down man that was hurt sat back. The He ‘You hit me with that happened?’ said, ‘Fellow, said, ” “In tool box I he testified: cross-examination, truck.’ On wrenches, pliers, airconditioners, screwdrivers, hand furnaces, parts for * wide approximately is twelve inches '"'Thetool box like that." things bоdy. flush with the It is to the bed of inside and extends or twelve truck and extends ten inches on the inside of flush on beyond extend the bed the truck fenders of the outside. flush with the tool boxes on the twelve inches ten or at least outside.” summary the evidence set majority forth Considering testimony of defendant Willetts set forth ver- and also opinion, judgment that the my opinion motion of nonsuit above, batim jury, case submitted to the so vote. be overruled should