Evans v. Shea Bros. Construction

Supreme Court of North Carolina

Evans v. Shea Bros. Construction

138 S.E. 411, 194 N.C. 31, 1927 N.C. LEXIS 9

CourtSupreme Court of North Carolina

DecidedJune 10, 1927

StatusPublished

Cited by18 cases

This text of 138 S.E. 411 (Evans v. Shea Bros. Construction) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Evans v. Shea Bros. Construction, 138 S.E. 411, 194 N.C. 31, 1927 N.C. LEXIS 9 (N.C. 1927).

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Opinion

ClaeksoN, J.

In Hughes v. Lassiter, 193 N. C., p. 650, this Court has recently discussed matters presented in this action, and it is unnecessary to repeat.

It was contended in tbe present action by defendants that tbe road on which tbe alleged injury occurred was not a detour- road. Tbe plaintiff left tbe main highway and traveled a dangerous road not opened. Tbe charge goes too far, and is prejudicial. Tbe jury should have been instructed that, under all tbe facts and circumstances of tbe case, it was their province to determine whether defendant failed to exercise ordinary care — that degree of care which a prudent man should use and exercise under like circumstances and charged with like duty.

“In order to establish a ease of actionable negligence in a suit like tbe present, tbe plaintiff must show: First, that there has been a failure to exercise proper care in tbe performance of some legal duty which tbe defendant owed tbe plaintiff, under tbe circumstances in which they were placed; and, second, that such negligent breach of duty was tbe proximate cause of tbe injury — a cause that produced tbe result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a -result was probable under all tbe facts as they existed. Ramsbottom v. R. R., 138 N. C., 41.” Whitt v. Rand, 187 N. C., at p. 808.

In White v. Realty Co., 182 N. C., at p. 538, it is held: “His Honor correctly charged tbe jury that if tbe negligence of MeQuay, tbe owner and driver of tbe Ford car, was tbe sole and only proximate cause of *34 plaintiff’s injury, tbe defendant would not be liable; for, in that event, tbe defendant’s negligence would not bave been one of tbe proximate causes of tbe plaintiff’s injury. Bagwell v. R. R., 167 N. C., 615. But if tbe degree, however small, of tbe causal negligence, or that without which tbe injury would not bave occurred, be attributable to tbe defendant, then tbe plaintiff, in tbe absence of any contributory negligence on bis part, would be entitled to recover, because tbe defendant cannot be excused from liability unless tbe total causal negligence, or proximate cause, be attributable to another, or others. ‘When two efficient proximate causes contribute to an injury, if defendant’s negligent act brought about one of such causes, be is liable.’ Wood v. Public Corp., supra (174 N. C., 697), and cases there cited.” Albritton v. Hill, 190 N. C., 429; Hanes v. Utilities Co., 191 N. C., 13.

For tbe reasons given, there must be a

New trial.

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ClaeksoN, J.

In Hughes v. Lassiter, 193 N. C., p. 650, this Court has recently discussed matters presented in this action, and it is unnecessary to repeat.

It was contended in tbe present action by defendants that tbe road on which tbe alleged injury occurred was not a detour- road. Tbe plaintiff left tbe main highway and traveled a dangerous road not opened. Tbe charge goes too far, and is prejudicial. Tbe jury should have been instructed that, under all tbe facts and circumstances of tbe case, it was their province to determine whether defendant failed to exercise ordinary care — that degree of care which a prudent man should use and exercise under like circumstances and charged with like duty.

“In order to establish a ease of actionable negligence in a suit like tbe present, tbe plaintiff must show: First, that there has been a failure to exercise proper care in tbe performance of some legal duty which tbe defendant owed tbe plaintiff, under tbe circumstances in which they were placed; and, second, that such negligent breach of duty was tbe proximate cause of tbe injury — a cause that produced tbe result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a -result was probable under all tbe facts as they existed. Ramsbottom v. R. R., 138 N. C., 41.” Whitt v. Rand, 187 N. C., at p. 808.

In White v. Realty Co., 182 N. C., at p. 538, it is held: “His Honor correctly charged tbe jury that if tbe negligence of MeQuay, tbe owner and driver of tbe Ford car, was tbe sole and only proximate cause of *34 plaintiff’s injury, tbe defendant would not be liable; for, in that event, tbe defendant’s negligence would not bave been one of tbe proximate causes of tbe plaintiff’s injury. Bagwell v. R. R., 167 N. C., 615. But if tbe degree, however small, of tbe causal negligence, or that without which tbe injury would not bave occurred, be attributable to tbe defendant, then tbe plaintiff, in tbe absence of any contributory negligence on bis part, would be entitled to recover, because tbe defendant cannot be excused from liability unless tbe total causal negligence, or proximate cause, be attributable to another, or others. ‘When two efficient proximate causes contribute to an injury, if defendant’s negligent act brought about one of such causes, be is liable.’ Wood v. Public Corp., supra (174 N. C., 697), and cases there cited.” Albritton v. Hill, 190 N. C., 429; Hanes v. Utilities Co., 191 N. C., 13.

For tbe reasons given, there must be a

New trial.

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138 S.E. 411, 194 N.C. 31, 1927 N.C. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-shea-bros-construction-nc-1927.

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