Chandler v. MORELAND CHEMICAL COMPANY

154 S.E.2d 502, 270 N.C. 395, 1967 N.C. LEXIS 1363

• Court: Supreme Court of North Carolina
• Decided: May 24, 1967
• Docket: 697
• Status: Published

Opinion

Higgins, J.

The defendant insists: (1) the verdict and judgment in this case should be set aside for failure of the Court to grant the motion for judgment of nonsuit at the close of all the evidence; or (2) a new trial should be awarded because of errors in the Court’s charge.

The rule by which this Court determines the sufficiency of the evidence to survive a motion for nonsuit in a civil case has been stated by this Court in many cases.

“The question presented is whether the evidence was sufficient to entitle the plaintiff to. have the jury pass on it. ‘If the evidence in the light most favorable to plaintiff, giving him the benefit of all permissible inferences from it, tends to support all essential elements of actionable negligence, then it is sufficient to survive the motion to nonsuit’. McFalls v. Smith, 249 N.C. 123, 105 S.E. 2d 297; Taylor v. Brake, 245 N.C. 553, 96 S.E. 2d 686; Scarborough v. Veneer Co., 244 N.C. 1, 92 S.E. 2d 435.

Inconsistencies and conflicts in the evidence, whether witnesses are mistaken or otherwise, truthful or otherwise, are questions of fact to be resolved by the fact finding body — the jury. Only a question of law is presented by demurrer to the evidence or motion to nonsuit. Bell v. Maxwell, 246 N.C. 257, 98 S.E. 2d 33; Keener v. Beal, 246 N.C. 247, 98 S.E. 2d 19; Mallette v. Cleaners, 245 N.C. 652, 97 S.E. 2d 245.” Lake v. Express, Inc., 249 N.C. 410, 106 S.E. 2d 518.

The latest statement of the rule is by Branch, J., in Barefoot v. Joyner, et al, ante, 388, decided this day.

The material evidence on the issue of negligence is contained in the statement of facts. The defendant shipped to the plaintiff’s employer a drum containing 750 pounds of sulphuric acid — a potentially dangerous substance. The threads on the bung and the cap or plug were so worn out that the release of the cap could be affected by a quarter turn, whereas ordinarily a release required 3% or 4 complete turns. Under the sealing cap the defendant had placed two gaskets, one of which was defective. This particular drum was not suited to the use of two gaskets. In following the customary procedure, by using a heavy wrench to begin removal of the plug (by making a quarter turn), then changing the position of the drum before making the customary additional turns ordinarily required, the bung or cap gave way, permitting the acid from the drum to gush out and burn the plaintiff. The two gaskets were used- — only one should have been used on this drum. The second gasket displaced the threads to such an extent that a quarter turn released the contents.

The condition of the drum, the manner in which it was sealed by the defendant, and opened by the plaintiff, raised issues of negligence and contributory negligence. These issues arose on the pleadings and were supported by evidence sufficient to justify their submission and to sustain the answers. “The plaintiff, however, is not required to make out his case by direct proof, but may rely upon circumstances from which a reasonable inference of negligence may be drawn, Dail v. Taylor, 151 N.C. 284; Perry v. Bottling Co., 196 N.C. 175, in which event the evidence must be interpreted most favorably for the plaintiff, and if it is of such character that reasonable men may form divergent opinions of its import it is customary to leave the issue to the final award of the jury.” Corum v. Tobacco Co., 205 N.C. 213, 171 S.E. 78. By overruling the motion for non-suit the Court did not commit error.

The defendant’s objections to the charge are not sustained. The Court charged fairly upon the issues raised by the pleadings, and supported by the evidence. Over objection, the Court permitted the plaintiff to introduce the mortuary tables. The objection is based upon the alleged lack of evidence showing permanent injury. However, the evidence disclosed that permanently disfiguring scars resulted from the burns. Gillikin v. Burbage, 263 N.C. 317, 139 S.E. 2d 753. The mortuary table is statutory, G.S. 8-46, and need not be introduced, but may receive judicial notice when facts are in evidence requiring or permitting its.application. The objections to the charge are not sustained.

No error.