130 S.E.2d 397 | N.C. | 1963
Mrs. Virginia G. REASON
v.
SINGER SEWING MACHINE COMPANY.
Supreme Court of North Carolina.
*399 Teague, Johnson & Patterson, Ronald C. Dilthey, Raleigh, Carroll W. Weathers, Jr., Wilson, for appellant.
Lucas, Rand & Rose, Wilson, Dockery, Ruff, Perry, Bond & Cobb, Charlotte, for appellee.
DENNY, Chief Justice.
If it be conceded that the machine furnished by the defendant was defective and that the defendant knew or by the exercise of reasonable care such defect could or should have been ascertained, the question still remains whether or not such alleged negligence was the proximate cause of plaintiff's injuries.
Negligence, in order to be actionable, must be shown to have been the proximate cause or one of the proximate causes of the plaintiff's injuries. There must be some causal relationship between the breach of duty and the injury. Johnson v. Meyer's Co., 246 N.C. 310, 98 S.E.2d 315.
In Wall v. Trogdon, 249 N.C. 747, 107 S.E.2d 757, the plaintiffs alleged that the defendant, Trogdon Flying Service, Inc., while engaged in dusting and spraying crops by the use of an airplane, flew said airplane over the plaintiffs' lakes, which were stocked with fish, while dispensing a "poisonous rothane insecticide spray," as a result of *400 which the fish belonging to the plaintiffs were killed and the waters rendered unsafe for use in any way or any purpose by either man or animal. On appeal to this Court from a judgment as of nonsuit, we said: "* * * (T)here must be legal evidence of every material fact necessary to support a verdict, and the verdict `must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.' (Citations omitted)
"If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed.
"In the light of these principles applied to the evidence in the case there is no causal connection between the death of the fish in the lakes and the operation of the aircraft.
"In the first place there is no evidence as to elements constituting the spray used in spraying the crops. If there were poison in the spray there is no evidence that it was poisonous to fish. If it were poisonous to fish there is no evidence that the fish died from the poison. Whatever the oily substance seen on the waters of one of the lakes was, there is no evidence as to what it was, or the source from which it came. The testimony of the expert fishery biologist is purely speculative, and founded on possibilities. Indeed the element of proximate cause is missing."
In the case of Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E.2d 392, the plaintiff alleged she had purchased from the defendant a hair rinse and had used it as directed; that each time she used it her scalp became irritated; that prior to its use she had never had any trouble with her scalp. After using the hair rinse the third time she consulted a physician who found that she had weeping dermatitis of her scalp.
In sustaining a nonsuit, Parker, J., speaking for the Court, said: "It may be that there was a poisonous substance in the hair rinse, but there is no evidence to support such a conjecture." See also Mauney v. Luzier's, Inc., 215 N.C. 673, 2 S.E.2d 888.
In the case of Watson v. Borg-Warner Corporation, 190 Tenn. 209, 228 S.W.2d 1011, a machine operator frequently came in contact with lubricating oil in the operation of her machine. Upon a change of brands of oil by her employer, the plaintiff, operator, developed a rash on her hands and arms which required extensive medical care. The operator sued her employer for negligently failing to protect her from the effects of the oil. In upholding a directed verdict for the defendant, the Court said: "There is no competent testimony or prima facie proof, either of the nature and medical definition of the disease or of its probable cause. In fact, the plaintiff proved nothing except that she noticed the eruption on her skin after the change of oil. The isolated fact that one event occurs after another is not by itself sufficient to warrant an inference that the event which is first in time is the cause of the latter. * * *
"As we view it, the technical medical name of plaintiff's disease was not an essential of plaintiff's proof, but proof that plaintiff's disease was of such character that it could or would probably, in the light of medical clinical experience, be caused by contact with an oil having the chemical components of the oil actually used, was an essential and a missing element of plaintiff's proof."
Likewise, in the case of Masonite Corp. v. Scruggs, 201 Miss. 722, 29 So. 2d 262, the plaintiff Scruggs alleged and contended that he was injured by the constant use of water containing acid in his work. It was held that in the absence of a showing that the water contained acid in sufficient quantities to cause such alleged injuries, the acid could not be found to be the proximate cause of the plaintiff's injury.
In the case before us, there was medical testimony that hot oil could have caused the disease or that unheated oil might, depending upon the chemical composition *401 of it. However, there was no evidence that the oil was hot. The plaintiff testified it was warm. Dr. Willis, in his testimony as to what might have caused the burns, said: "I can tell you hot oil or hot water or hot anything could do itproduce the same condition she had. Even baby oil, if it's hot, could do it."
There was no evidence in the trial below tending to show the chemical composition of the oil involved.
In our opinion, the evidence is insufficient to establish actionable negligence on the part of the defendant.
Affirmed.
