Hart v. Curry

Supreme Court of North Carolina

Hart v. Curry

78 S.E.2d 170, 238 N.C. 448, 1953 N.C. LEXIS 465

CourtSupreme Court of North Carolina

DecidedOctober 21, 1953

Docket28

StatusPublished

Cited by23 cases

This text of 78 S.E.2d 170 (Hart v. Curry) 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

Hart v. Curry, 78 S.E.2d 170, 238 N.C. 448, 1953 N.C. LEXIS 465 (N.C. 1953).

Pincite

Opinion

Denny, J.

The plaintiff assigns as error the following portion of the charge to the jury: “For it to be said that the defendant’s negligence was *449 tbe proximate cause of tbe death of plaintiff’s intestate, it must be shown that tbe death of plaintiff’s intestate was tbe natural and probable result of tbe defendant’s negligence, and that it ought to have been foreseen, in tbe light of all of tbe surrounding facts and circumstances.”

This instruction is not in accord with our decisions on tbe question of foreseeability. Tbe test of foreseeability does not require that tbe negligent person should have been able to foresee tbe injury in the precise form in which it actually occurred, or to anticipate tbe particular consequences which actually flowed from bis act or omission. 38 Am. Jur., Negligence, section 62, page 713.

All that tbe plaintiff is required to prove on tbe question of foreseeability, in determining proximate cause, is that in “tbe exercise of reasonable care, tbe defendant might have foreseen that some injury would result from bis act or omission, or that consequences of a generally injurious nature might have been expected.” 21 A. & E. Ency. of Law (2nd Ed.), page 487, quoted with approval in Drum v. Miller, 135 N.C. 204 (p. 215), 47 S.E. 421, 65 L.R.A. 890, 102 Am. St. Rep. 528; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E. 2d 63; McIntyre v. Elevator Co., 230 N.C. 539, 54 S.E. 2d 45; Lee v. Upholstery Co., 227 N.C. 88, 40 S.E. 2d 688.

In Drum v. Miller, supra, tbe court instructed tbe jury that before they could find for tbe plaintiff they “were required to find that tbe defendant was at tbe time able to foresee, by tbe exercise of ordinary care, not only that injury would result but that tbe particular injury which was received by tbe plaintiff would be tbe natural and probable consequence of bis act.” This instruction was held to be erroneous and prejudicial to tbe plaintiff.

Likewise, in tbe instant case, tbe assignment of error must be sustained. Tbe plaintiff is entitled to a new trial and it is so ordered.

New trial.

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Denny, J.

The plaintiff assigns as error the following portion of the charge to the jury: “For it to be said that the defendant’s negligence was *449 tbe proximate cause of tbe death of plaintiff’s intestate, it must be shown that tbe death of plaintiff’s intestate was tbe natural and probable result of tbe defendant’s negligence, and that it ought to have been foreseen, in tbe light of all of tbe surrounding facts and circumstances.”

This instruction is not in accord with our decisions on tbe question of foreseeability. Tbe test of foreseeability does not require that tbe negligent person should have been able to foresee tbe injury in the precise form in which it actually occurred, or to anticipate tbe particular consequences which actually flowed from bis act or omission. 38 Am. Jur., Negligence, section 62, page 713.

All that tbe plaintiff is required to prove on tbe question of foreseeability, in determining proximate cause, is that in “tbe exercise of reasonable care, tbe defendant might have foreseen that some injury would result from bis act or omission, or that consequences of a generally injurious nature might have been expected.” 21 A. & E. Ency. of Law (2nd Ed.), page 487, quoted with approval in Drum v. Miller, 135 N.C. 204 (p. 215), 47 S.E. 421, 65 L.R.A. 890, 102 Am. St. Rep. 528; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E. 2d 63; McIntyre v. Elevator Co., 230 N.C. 539, 54 S.E. 2d 45; Lee v. Upholstery Co., 227 N.C. 88, 40 S.E. 2d 688.

In Drum v. Miller, supra, tbe court instructed tbe jury that before they could find for tbe plaintiff they “were required to find that tbe defendant was at tbe time able to foresee, by tbe exercise of ordinary care, not only that injury would result but that tbe particular injury which was received by tbe plaintiff would be tbe natural and probable consequence of bis act.” This instruction was held to be erroneous and prejudicial to tbe plaintiff.

Likewise, in tbe instant case, tbe assignment of error must be sustained. Tbe plaintiff is entitled to a new trial and it is so ordered.

New trial.

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78 S.E.2d 170, 238 N.C. 448, 1953 N.C. LEXIS 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hart-v-curry-nc-1953.

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