Ivey v. Eastern Cotton Oil Co.

BeogdeN, J. The only question of law presented is whether there was sufficient evidence -of negligence to be submitted to the jury. The sole element of negligence relied upon as a basis of liability is whether the cotton seed caved in, thus precipitating the body of plaintiff’s intestate into the funnel where he was smothered by the crushing flow of the seed. The evidence, however, does not disclose a slide of seed at the time the body of plaintiff’s intestate was discovered. Indeed, .the un-contradicted testimony tends to show that the fork used by the deceased was standing up in the pile of seed at or near the place where he was working a few minutes before his body rolled into the tunnel below. This physical fact tends to negative the theory of a seed slide into the funnel. Furthermore, the physician who examined the -body shortly after death declared that he was uncertain whether the deceased “died from being smothered or from heart failure.” Therefore, the evidence viewed in a liberal light, fails to disclose the essential fact of negligence as the proximate cause of the death. Thus, ultimate liability rests exclusively upon conjecture. Under such circumstances the rule of law established by an unbroken line of judicial declaration is that “evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it is so, is an insufficient foundation for a verdict and should not be left with the jury.” S. v. Vinson, 63 N. C., 335; Wittkowsky v. Wasson, 71 N. C., 451; Byrd v. Express Co., 139 N. C., 273, 51 S. E., 851; Warwick v. Ginning Co., 153 N. C., 262, 69 S. E., 129; Bangle v. Appalachian Hall, 190 N. C., 833, 131 S. E., 42; Wilson v. Lumber Co., 194 N. C., 374, 139 S. E., 760; S. v. Swinson, 196 N. C., 100, 144 S. E., 555. The case at bar is somewhat similar to Warwick v. Ginning Co., supra. In that case “the seed slipped or gave way and plaintiff’s foot was drawn into the conveyer and injured.” Recovery was denied upon *454 the theory that the plaintiff had equal knowledge with the defendant of the conditions surrounding the work and was permitted to do his work in his own way — the Court remarking, “There is no special knowledge required to throw the seed in a hole.” Upon the whole record, we are of the opinion that the judgment of nonsuit was proper. Affirmed.