Mitchell v. . Melts

18 S.E.2d 406, 220 N.C. 793, 1942 N.C. LEXIS 549

• Court: Supreme Court of North Carolina
• Decided: January 23, 1942
• Status: Published

Opinion

'WiNBOBNE, J.

When the evidence shown in the record, portraying the factual situation surrounding the death of plaintiff’s intestate, is taken in the light most favorable to plaintiff, and giving to him the benefit of every reasonable inference therefrom, we are of opinion that plaintiff fails to show actionable negligence.

In an action for recovery of damages for wrongful death resulting from actionable negligence, the plaintiff must show: First, that there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed plaintiff’s intestate under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury which produced the death — a cause that produced the 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 result was probable under the facts as they existed. Whitt v. Rand, 187 N. C., 805, 123 S. E., 84; Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326; Mills v. Moore, 219 N. C., 25, 12 S. E. (2d), 661, and cases cited. White v. Chappell, 219 N. C., 652, 14 S. E. (2d), 843; Reeves v. Staley, ante, 573.

There must be legal evidence of every material fact necessary to support a verdict, and the verdict “must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.” 23 C. J., 51; S. v. Johnson, 199 N. C., 429, 154 S. E., 730; Denny v. Snow, 199 N. C., 773, 155 S. E., 874; Shuford v. Scruggs, 201 N. C., 685, 161 S. E., 315; Rountree v. Fountain, 203 N. C., 381, 166 S. E., 329; Allman v. R. R., 203 N. C., 660, 166 S. E., 891; Cummings v. R. R., 217 N. C., 127, 6 S. E. (2d), 837; Mercer v. Powell, 218 N. C., 642, 12 S. E. (2d), 227; Mills v. Moore, 219 N. C., 25, 12 S. E. (2d), 661.

If the evidence fail to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed. Whether there is enough evidence to support a material issue is a matter of law. Mills v. Moore, supra.

At the outset: Is there evidence in instant case that defendant’s truck was being operated in violation of the speed limit? The answer to this question is dependent upon whether the accident occurred in a business district or in a residential district.

A business district as defined in subsection (a) of section 1 of chapter 275, Public Laws 1939, is “The territory contiguous to a highway where seventy-five per cent or more of the frontage thereon in a distance of three hundred (300) feet or more is occupied by buildings in use for business purposes.”

A residential district, as defined in subsection (d) of said section of said Act is “The territory contiguous to a highway not comprising a business district, where seventy-five per cent or more of the frontage thereon for a distance of three hundred (300) feet or more is mainly occupied by dwellings, or by dwellings and buildings in use for business purposes.”

“Contiguous,” as defined by Webster, means “in actual contact; touching; also, near, though not in contact; neighboring; adjoining; near in succession.” Hence, the phrase “territory contiguous to a highway,” as used in the statutes above, simply means the land lying along and adjoining and on either one or both sides of a highway. Manifestly, however, as so used, the term does not include the adjoining land covered by a crossing highway. Thus, that part of a highway comprising an intersection may not properly be considered in applying the statute to any given locality. To be a business district at least seventy-five per cent of the frontage of the territory contiguous to a highway in a distance of three hundred feet must be occupied by buildings in use for business purposes. Public Laws 1939, chapter 275, section 1 (a). To be a residential district two things must concur: (1) The territory contiguous to a highway must not comprise a business district as defined by the statute. (2) At least seventy-five per cent of the frontage of the territory contiguous to the highway for a distance of three hundred feet or more must be mainly occupied by dwellings, or by dwellings and buildings in use for business purposes. Public Laws 1939, chapter 275, section 1 (d).

The question then arises as to how the three hundred feet referred to in the statutes shall be measured. Pertinent to situation in hand, as cities and towns are usually laid off into streets and blocks, and as intersections are not within the purview of the statutes, the particular blocks contiguous to the street on which an accident occurs may be said to properly comprise the territorial limits within which to measure the three hundred feet specified in the statute. Certainly a proper admeas-urement including a street intersection would be improper. It is conceivable, and in observation it is a fact, often, that the frontage in one block may he wholly occupied by buildings in use for business purposes, while in the very next block the whole frontage may be occupied by dwellings, or by dwellings and buildings in use for business purposes, or not occupied at all.

In tbe present case tbe accident admittedly baying occurred on Walker Avenue west of its intersection with Spring Street, we are of opinion and bold that tbe occupancy of tbe territory in tbe blocks contiguous to that particular section of that avenue affords tbe answer to tbe question as to wbetber tbe accident occurred in a business district, or in a residential district, or in neither. Whatever may be tbe occupancy of tbe frontage contiguous to that section of Walker Avenue east of tbe intersection with Spring Street, or of those sections of Spring Street north and south of tbe intersection is impertinent to tbe inquiry.

Tbe evidence is undisputed that all of tbe frontage, in tbe blocks or territory contiguous to that part of Walker Avenue west of tbe intersection where tbe accident occurred, is residential, except that on tbe north side occupied by tbe Ivory Store and tbe vacant store, not more than forty feet in all. Unquestionably a business district as defined by tbe statute does not exist there, and we so bold as a matter of law. Wbetber tbe evidence pertaining to residential occupancy is sufficient for a finding that a residential district, as defined by tbe statute, exists there, is immaterial in view of tbe evidence as to tbe speed of tbe truck.

It is provided in section 103 of chapter 407 of Public Laws 1937, that no person shall drive a vehicle on a highway at a greater rate of speed than is reasonable and prudent under tbe conditions then existing; that where no special hazard exists tbe speed of twenty miles per hour in any business district or twenty-five miles an hour in any residential district shall be lawful.

Here, there is no evidence that tbe truck was being operated in violation of this statute.

While the witness Edwards testified that tbe speed of tbe. truck was at least twenty miles per hour and not over thirty miles, bis testimony, taken in tbe light most favorable to plaintiff, amounts to no more than in bis opinion it was twenty miles per hour. He was unwilling to venture an opinion as to bow much more than twenty, and bow much less than thirty tbe speed was, and frankly stated that “it is somewhat guesswork,” and that “honestly” be does not know. If be does not know, a jury will not be permitted to hazard a guess on bis testimony — which is all tbe evidence on tbe question. Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Johnson v. R. R., 214 N. C., 484, 199 S. E., 704.

Furthermore, tbe mere fact of tbe skidding of an automobile is not of itself such evidence of negligence in tbe operation of an automobile as to render tbe owner liable for an injury in consequence thereof. Skidding itself does not imply negligence. Tbe doctrine of res ipsa loquitur in such cases does not apply. Springs v. Doll, 197 N. C., 240, 148 S. E., 251. See, also, Butner v. Whitlow, 201 N. C., 749, 161 S. E., 389; Waller v. Hipp, 208 N. C., 117, 179 S. E., 428; Clodfelter v. Wells, 212 N. C., 823, 195 S. E., 11; Williams v. Thomas, 219 N. C., 727, 14 S. E. (2d), 797.

Negligence is not to be presumed from tbe mere fact of injury or tbat tbe intestate was killed. Mills v, Moore, supra, and cases cited. See, also, Tack v. Auman, ante, 704.

Moreover, in tbe present case there is no evidence as to wben tbe intestate got on tbe street, as to bow long be bad been on tbe street before being stricken, or where be was or what be was doing just before being-stricken. Tbe testimony is tbat tbe driver of tbe truck did not see him. Under such circumstances, it would be speculative to bold tbat this evidence is sufficient to show tbat tbe intestate was in a position where tbe driver of tbe truck could or should have seen him. Pack v. Auman, supra.

In tbe Pack case, supra, Schenck, J., speaking for the Court, uses this language: “In tbe absence of any evidence of where on tbe highway tbe intestate was at tbe time of being stricken, or of wben be got on tbe highway, or of bow long be bad been on tbe highway before being stricken, tbe plaintiff’s case must fail. Tbe mere fact tbat be was injured and killed does not constitute evidence tbat bis injury and death were proximately caused by tbe negligence of tbe defendants. Mills v. Moore, 219 N. C., 25, 12 S. E. (2d), 661, and cases there cited.”

To like effect is tbe decision in Pace v. Transport Co., 216 N. C., 804, 5 S. E. (2d), 547. There, though tbe evidence is not stated, tbe factual situation on public highway shown in tbe record on appeal is not materially different from tbat here. Judgment as of nonsuit was affirmed in this Court in per curiam opinion.

Tbe judgment below is

Affirmed.