McGaha v. Smoky Mountain Stages, Inc.

140 S.E.2d 355 (1965)

263 N.C. 769

Brenda McGAHA v. SMOKY MOUNTAIN STAGES, INC., and Gordon Clark.

No. 27.

Supreme Court of North Carolina.

February 24, 1965.

*357 Redden, Redden & Redden, by Arthur J. Redden, M. F. Toms, Hendersonville, for plaintiff appellee.

Whitmire & Whitmire, Hendersonville, for defendant appellants.

HIGGINS, Justice.

The defendant by exceptive assignment challenges the sufficiency of the findings of fact to support a recovery. The plaintiff alleged and both she and her husband testified that her injuries as well as his resulted from the collision between the moving bus and their stationary automobile. The plaintiff's pleadings were cast, her evidence was presented and the case was tried on that theory. Judge Sheppard entered, and then removed by crossing out, a finding that the bus and the automobile had collided. The Court found the automobile collided with the rock. But the plaintiff and her husband testified they suffered no injury as a result of the Oldsmobile's having hit the rock. There is no finding whatever left in the record that the bus at any time struck the Oldsmobile. Hence the finding of liability and damages against the defendant is without a factual basis to support it. Negligence, unless a proximate cause of injury is not actionable. Reason v. Singer Sewing Machine Co., 259 N.C. 264, 130 S.E.2d 397.

In this condition of the record the order of the Superior Court affirming the judgment of the General County Court was improvidently entered and is set aside. The Superior Court will remand the cause to the General County Court of Henderson County for a new trial.

Reversed.