Griffin v. Blankenship

102 S.E.2d 451 (1958)

248 N.C. 81

J. W. GRIFFIN v. A. V. BLANKENSHIP, trading as A. V. Blankenship Engineering Company, and Ernest B. Wilson.

No. 247.

Supreme Court of North Carolina.

March 26, 1958.

*454 Richard M. Welling, Charlotte, for plaintiff appellant.

Kennedy, Covington, Lobdell & Hickman, Eugene M. Anderson, Jr., Charlotte, for defendants appellee.

DENNY, Justice.

This appeal turns on whether or not the plaintiff's evidence, when considered in the light most favorable to him, as it must be when considering a motion for judgment as of nonsuit, is sufficient to carry the case to the jury on the question of actionable negligence. Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727; Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676; Hughes v. Thayer, 229 N.C.773, 51 S.E.2d 488; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209.

The plaintiff devotes a substantial part of his brief in arguing that the defendant operator of the bulldozer was not an employee of the plaintiff. Therefore, he contends that both the defendant operator and his employer, the owner of the equipment, are responsible to the plaintiff for the injuries he sustained, citing Hodge v. McGuire, 235 N.C. 132, 69 S.E.2d 227.

It is not necessary to determine whether the operator of Blankenship's bulldozer was an employee of the plaintiff or of Blankenship if the plaintiff's evidence is insufficient to establish actionable negligence against the defendant Wilson. "Actionable negligence exists only where one whose acts occasion injury to another owes to the latter a duty created either by contract or by operation of law which he has failed to discharge. There must be an act or omission by which a legal duty or obligation to the complaining party is breached and there must be a causal connection between the breach of duty and the injury." Truelove v. Durham & Southern R. Co., 22 N.C. 704, 24 S.E.2d 537, 538.

The operator of the bulldozer, on the occasion involved herein, owed to the plaintiff the duty to exercise due care in the operation and manipulation of the bulldozer.

In Butler v. Allen, 233 N.C. 484, 64 S.E.2d 561, 563, this Court said: "The due care required in fixing responsibility for negligence is the rule of the prudent man. The standard is always that care which a reasonably prudent man should exercise under the same or similar circumstances. * * *"

To recover damages for an injury, it is not only necessary to prove a negligent act but it is equally necessary to show by the greater weight of the evidence that such negligent act was the proximate cause or a proximate cause of the injury.

An integral factor necessary to constitute proximate cause is foreseeability. Cranfield v. City of Winston-Salem, 200 N.C. 680, 158 S.E. 241; McIntyre v. Monarch Elevator & Machine Co., 230 N.C. 539, 54 S.E.2d 45.

In the case of Osborne v. Atlantic Ice & Coal Co., 207 N.C. 545, 177 S.E. 796, 797, it is said: "Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable negligence is a requisite for recovery in an action for personal injury negligently inflicted." Beach v. Patton, 208 N.C. 134, 179 S.E. 446; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808; Brady v. Southern R. Co., 222 N.C. 367, 23 S.E.2d 334; Hiatt v. Ritter, 223 N.C. 262, 25 S.E.2d 756; Watkins v. Taylor Furnishing Co., 224 N.C. *455 674, 31 S.E.2d 917; Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331.

There is no evidence on this record which tends to show that the defendant Wilson operated the bulldozer negligently or in an unusual or improper manner, or that in its operation there were any facts or circumstances from which negligence on his part may be legitimately inferred. Gant v. Gant, 197 N.C. 164, 148 S.E. 34; Rockey v. Ernest, 367 Pa. 538, 80 A.2d 783.

In our opinion, the evidence does not show facts sufficient to warrant the inference that the operator of the bulldozer could reasonably have foreseen that the sapling, which was being pushed along with a pile of other saplings, brush and rubbish, would fly out and injure the plaintiff, who was standing in the woods and off of the right of way. Osborne v. Atlantic Ice & Coal Co., supra; Gant v. Gant, supra. Consequently, we hold there was no error in sustaining the motion for judgment as of nonsuit.

Affirmed.