Kinlaw v. Willetts

131 S.E.2d 351 (1963) 259 N.C. 597 Murphy Lee KINLAW v. Walter Maynard WILLETTS and Horace T. King, Trading and Doing Business as New Hanover Iron Works. No. 746. Supreme Court of North Carolina. June 14, 1963. *353 Barrington & Britt, by J. H. Barrington, Jr., Lumberton, for plaintiff, appellant. Ellis E. Page, Lumberton, for defendants, appellees. HIGGINS, Justice. In order to escape nonsuit in a negligence case, a plaintiff must offer evidence either direct, circumstantial, or a combination of both, tending to show that the defendant failed to exercise that degree of care for the plaintiff's safety which a reasonably prudent man under like circumstances would exercise when charged with a like duty; and that the defendant's failure *354 was the cause, or, under certain circumstances, one of the causes of the injury. The defendant's failure may consist of a negligent act or acts; or of a negligent failure to act if under legal duty to do so. Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Williamson v. Clay, 243 N.C. 337, 90 S.E. 2d 727; Boyd v. Harper, 250 N.C. 334, 108 S.E.2d 598; Lane v. Bryan, 246 N.C. 108, 97 S.E.2d 411. The evidence, and the legitimate inferences from it, must be considered in the light most favorable to the plaintiff. Wilson v. Camp, 249 N.C. 754, 107 S.E.2d 743. Evidence, however, which establishes nothing more than an accident and an injury is insufficient to go to the jury. Robbins v. Crawford, 246 N.C. 622, 99 S.E.2d 852; Pack v. Auman, 220 N.C. 704, 18 S.E.2d 247. The evidence of the parties in this case is not in serious conflict. The plaintiff testified he was working with three others, erecting a road sign at or near a point where an access road entered from the east into State Highway No. 132. The defendant, driving a Ford pickup truck north on the State highway, passed the point where the men were at work. As the truck passed, the plaintiff sustained an injury to his right forearm which consisted of a penetrating wound about the size of a fifty-cent coin, breaking both bones of the forearm. The plaintiff said the truck hit him. He also said he didn't know what hit him but the injury occurred when the truck passed. The evidence indicated there were tool boxes on the pickup truck. The investigating officer examined the truck at the scene. He testified there was nothing on the truck indicating recent contact with any object. Neither was there any protrusion beyond the truck's fenders and the body which was in line with the fenders. The plaintiff testified he did not actually see the truck until after it passed. Neither Clemmons nor Carter saw or heard any contact between the truck and any object, although the three men and another prisoner, Tew, were within two or three feet of each other. Immediately after the truck passed, the plaintiff was in the road holding his arm and exhibiting the fresh puncture wound. The defendant testified as he passed the men he was driving at or near as possible to the marked middle line of 132; that he felt one of his wheels run over some object—he thought a rock—and looking back in his rear-view mirror, he saw the plaintiff standing in the road holding his arm. The plaintiff testified: "I don't know how much of the truck or what part of the truck had passed me. I did not see it when it hit me. * * * My shovel did not go under the wheel." From the plaintiff's testimony it is obvious the statements the truck hit him are his conclusions based on the fact the injury occurred as the truck passed. The evidence permits the inference that something connected with the moving truck inflicted the plaintiff's injury. What actually inflicted the round, penetrating wound into the plaintiff's middle forearm without leaving so much as another scratch on his body, is undisclosed. It seems obvious that such a wound inflicted on a man standing or working on the side of a road could only be inflicted by a spear or some small shaft, or by a missile hurled directly against the midforearm. Nothing of such a character protruded from the truck. How did the accident happen? The defendant, driving at 15 miles per hour in his traffic lane, so far as the evidence discloses, felt one of his wheels run over something like a rock. Broken pieces of concrete and broken asphalt and rocks were scattered on the road by the force which had knocked down the sign. Four men, three with shovels, were placing the material around the post. All were within three feet of each other. Clemmons held the post in place. He doesn't know what happened. Carter was at work with a shovel. He doesn't know what happened. The plaintiff thinks some part of the truck hit him, but obviously doesn't know what part, and frankly so states. But what about Tew? He was there at work with a shovel. He was not in court. The truck did not strike either *355 Carter's or the plaintiff's shovels. However, no one has testified or apparently knows what happened to Tew's shovel. Whether the truck hit Tew's shovel, driving the end of the handle into the plaintiff's arm, or whether one of the truck wheels propelled a small stone, piece of broken concrete or asphalt, inflicting the injury, are material questions in this case. The evidence does not answer them. Not only the object which inflicted the injury, but where it came from and how it was propelled, are left to speculation and guess. Legal inferences may be drawn from facts; but inferences may not be based on other inferences. The chain of causation permits inferences to be drawn from facts, but if they are based on other inferences the chain of proof is broken. Lane v. Bryan, supra. The concluding paragraph in Boyd v. Harper, 250 N.C. 334, 108 S.E.2d 598, disposes of the legal questions involved in this case: "`Negligence is not presumed from the mere fact that plaintiffs' intestate was killed in the collision.' Williamson v. Randall, 248 N.C. 20, 25, 102 S.E.2d 381, 386; Robbins v. Crawford, 246 N. C. 622, 628, 99 S.E.2d 852. However, direct evidence of negligence is not required, but the same may be inferred from facts and attendant circumstances. Etheridge v. Etheridge, 222 N.C. 616, 618, 24 S.E.2d 477. But in a case such as this, the plaintiff must establish attendant facts and circumstances which reasonably warrant the inference that the death of his intestate was proximately caused by the actionable negligence of the defendants. Robbins v. Crawford, supra; Whitson v. Frances, 240 N.C. 733, 737, 83 S.E.2d 879; Sowers v. Marley, 235 N.C. 607, 70 S.E.2d 670. In Parker v. Wilson, 247 N.C. 47, 53, 100 S.E.2d 258, 262, Parker, J., speaking for the Court, said: `Such inference cannot rest on conjecture or surmise. Sowers v. Marley, supra. "The inferences contemplated by this rule are logical inferences reasonably sustained by the evidence, when considered in the light most favorable to the plaintiff." Whitson v. Frances, supra. "A cause of action must be something more than a guess." Lane v. Bryan, 246 N.C. 108, 97 S.E.2d 411, 414. A resort to a choice of possibilities is guesswork not decision. Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E.2d 392. To carry his case to the jury the plaintiff must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts.' See also Stegall v. Sledge, 247 N.C. 718, 722, 102 S.E.2d 115." The judgment of involuntary nonsuit entered at the conclusion of all the evidence is Affirmed. PARKER, Justice (dissenting). Walter Maynard Willetts, one of the defendants, testified in part on direct examination as follows: "I was operating a red, 1957 Ford pickup with two boxes on the side mounted for the purpose of carrying tools and parts, sitting up on top of the fender but not protruding over the fender at all. The truck was the same width from front fenders to back fenders. The tool boxes were four feet from the bound mounted on top of the body which came out flush with the fenders. * * * As I passed these people I heard a thud, sounded like a car ran over a rock or stick or something in the road. Sounded like the wheel of the car hit something. At that time I was going approximately 15 miles an hour. Upon hearing this slight thud, I looked back in the mirror and saw this fellow holding his arm running across the road. * * * Upon observing the gentleman running across the road, I mashed on the gas to go ahead, then looked back through the mirror and decided I'd better stop; so I immediately pulled over to the shoulder, backed up, stopped the truck and walked back. The *356 man that was hurt had sat down at that time on the plaza. I said, `Fellow, what happened?' He said, `You hit me with that truck.'" On cross-examination, he testified: "In my tool box I had parts for furnaces, airconditioners, hand wrenches, screwdrivers, pliers, things like that. * * * The tool box is approximately twelve inches wide and extends inside to the bed of the truck, flush with the body. It is flush on the inside of the truck and extends ten or twelve inches on the outside. The fenders of the truck extend beyond the bed of the truck at least ten or twelve inches flush with the tool boxes on the outside." Considering the summary of the evidence set forth in the majority opinion, and also the testimony of defendant Willetts set forth verbatim above, it is my opinion that the judgment for motion of nonsuit should be overruled and the case submitted to the jury, and I so vote.