Harris v. Norfolk Southern Railroad

Hoke, J. The position is fully recognized here and elsewhere that a wind and rain storm of unusual extent and violence, one “so far outside of the ordinary range of human experience that the duty of exercising ordinary care does not require that it be anticipated or provided against,” is an act of God, within the meaning of the principle which ordinarily relieves a common carrier of liability in such cases. 29 Cyc., p. 441. And it is further held that, in order to its proper application, the negligence of the carrier must not have concurred as a proximate cause of the loss complained of. Tinder a charge of the court below, in full recognition of these principles, the jury have answered the issues *112 for tbe plaintiff, and we find no error in the case on appeal and exceptions noted which justify us in disturbing the results of the trial. In Shearman and Redfield on Negligence, 1613 (6th Ed.), it is said: “The rule is the same when the act of God or accident combines or concurs with the negligence of the defendant to produce the injury as when any other efficient cause combines or concurs. The defendant is liable if the injury would not have resulted but for his own wrongful act or omission. In Barrows on Negligence, p. 23, the position is stated thus: “'When a negligent or wrongful act is followed by an extraordinary natural occurrence which connects the act with consequent injury, the wrongdoer is still liable, and this is true even if the original negligent act without the occurrence of the natural phenomenon would not in itself have produced harm,” and Moore on Carriers (2d Ed.), p. 308, is to the same effect. The principle as stated in these authorities has been approved by decisions in our own Court (Ridge v. R. R., 167 N. C., pp. 510-527; Ferebee v. R. R., 163 N. C., pp. 351-51), and are in accord with doctrine very generally prevailing on the subject. The refusal to submit certain issues tendered by defendant, directed more specifically to the character and effects of the storm, cannot be sustained, those submitted being fully sufficient to enable the parties to present adequately and properly every “matter involved in the controversy.” Zollicoffer v. Zollicoffer, 168 N. C., 327; Barefoot v. Lee, 168 N. C., 89. The objections to the rulings of the court on questions of evidence are without merit and could have had no appreciable effect on the result. We find no reversible error in the record, and the judgment for plaintiff is Affirmed. BeówN, J., dissents.