Mills v. Waters
70 S.E.2d 11
N.C.
1952
Check Treatment
ValeNTINe, J.

It was a cold night in December and perfectly natural that the building should be heated in some manner. "With the gas tanks and pumps a safe distance from the front door, the presence of an open gas heater well within the room could not be regarded as negligence per se. The decisions of this Court are to the effect that in order to establish actionable negligence it must appear: (1) that the defendant, either personally or through an agent, servant or employee, has failed to exercise proper care and diligence in the performance of some legal duty which he owed the plaintiff under the circumstances in which they were at the time. Proper care, of course, means that degree of care which a man of ordinary prudence should use under like circumstances when charged with like duty. And, (2) that such negligent breach of duty was the proximate cause of the injury claimed. In addition it must appear that the negligent act produced the result in continuous sequence. The proof must also show that the negligent act was such that a man of ordinary prudence could have foreseen that such or some similar injurious result was probable under all the facts as they then existed. Ellis v. Refining Co., 214 N.C. 388, 199 S.E. 403.

In applying the rule of the prudent man, due consideration must be had for the circumstances prevailing at the time. An allowance must be made *426 for tbe excitement produced by tbe situation and tbe resulting nervous strain.

“One wbo is required to act in an emergency is not beld by tbe law to tbe wisest choice of conduct, but only to sucb choice as a person of ordinary care and prudence, similarly situated, would have made.” Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562. Citing Poplin v. Adickes, 203 N.C. 726, 166 S.E. 908; Pridgen v. Produce Co., 199 N.C. 560, 155 S.E. 247; Odom v. R. R., 193 N.C. 442, 137 S.E. 313; Parker v. R. R., 181 N.C. 95, 106 S.E. 755; Norris v. R. R., 152 N.C. 505, 67 S.E. 1017. Tbe standard of conduct required is that of an ordinarily prudent man. Jernigan v. Jernigan, 207 N.C. 831, 178 S.E. 587; Small v. Utilities Co., 200 N.C. 719, 158 S.E. 385. “ 'If the peril seemed imminent, more hasty and violent action was to be expected than would be natural at quieter moments, and sucb conduct is to be judged with reference to tbe stress of appearances at tbe time, and not- by tbe cool estimate of tbe actual danger formed by outsiders after tbe event’ —Holmes, J., in Gannon v. R. R., 173 Mass. 40.” Ingle v. Cassady, supra.

Applying these well-established rules of actionable negligence to tbe proof in this case, we are unable to discover any evidence of actionable negligence sufficient to take the case to tbe jury and sustain a verdict. In reaching this conclusion we have given due consideration to tbe rule of interpretation as stated in Powell v. Lloyd, 234 N.C. 481, 67 S.E. 2d 664, and Gainey v. R. R., ante, 114, 68 S.E. 2d 780.

It was necessary that tbe filling station be heated in some manner for tbe health and comfort of tbe employees working there. We cannot appropriately say that tbe defendant should have foreseen that tbe plaintiff or some other customer would take a jug of gasoline into tbe station and there break it so that tbe free gas would spread over tbe room and set tbe building on fire. To so bold would charge tbe defendants with a degree of prevision not contemplated by tbe law of negligence. Clark v. Drug Co., 204 N.C. 628, 169 S.E. 217; Money v. Hotel Co., 174 N.C. 508, 93 S.E. 964; Ellis v. Refining Co., supra.

In tbe case at bar, tbe emergency was not brought about by tbe defendants or their agents as in Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726, but was brought about when tbe plaintiff took tbe jug of gasoline into tbe filling station and there in some manner accidentally broke it so that gasoline was spread over tbe floor and near tbe open fire. Hence, that case is not controlling here.

This Court is reluctant to raise tbe standard of due care to sucb an unreasonable length as would practically place every accident in tbe category of actionable negligence, or make tbe keeper of a store or service station tbe insurer of tbe safety of bis customers. Griggs v. Sears, Roebuck & Co., 218 N.C. 166, 10 S.E. 2d 623.

*427 We cannot bold npon this record that the defendants are liable for the unfortunate injury sustained by plaintiff. Therefore, the judgment below is

Affirmed.