Newell v. . Darnell

183 S.E. 374, 209 N.C. 254, 1936 N.C. LEXIS 441

• Court: Supreme Court of North Carolina
• Decided: January 22, 1936
• Status: Published

Opinion

Sohenck, J.

Conceding, but not deciding, that the city of Winston-Salem was negligent in allowing the piles of sand to remain upon its sidewalk, the plaintiff specifically alleged and proved several negligent, if not criminal, acts on the part of the defendant Frances Darnell, and we are of the opinion that such negligent acts were the sole and proximate cause of the death of the plaintiff’s intestate, for which the defendant city cannot be held liable. The death of the intestate was not the natural or probable consequence of the city’s alleged negligence in allowing the piles of sand to remain upon the sidewalk.

“The test by which to determine whether the intervening act of an intelligent agent which has become the efficient cause of an injury shall be considered a new and independent cause, breaking the sequence of events put in motion by the original negligence of the defendant, is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected.” Balcum v. Johnson, 177 N. C., 213 (216-17).

To hold that the city of Winston-Salem could have foreseen that a third party would operate a car in such a negligent and reckless manner as to run down and kill a person walking near the curb on a straight and level street, in order to avoid going over the piles of sand on the sidewalk, would be, we apprehend, stretching the legal principles by which individuals are held liable for their negligent acts. The law requires reasonable foresight and, when the result complained of is not reasonably foreseeable in the exercise of due care, the party whose conduct is under investigation is not answerable therefor; and when an independent, efficient, and wrongful cause intervenes between the primary negligence and the injury ultimately suffered, the independent cause insulates the primary negligence and is deemed the proximate cause of the injury.

This case is governed by the principles enunciated in Carter v. Dumber Co., 129 N. C., 203; Lineberry v. R. R., 187 N. C., 786; Herman v. R. R., 197 N. C., 718; Chambers v. R. R., 199 N. C., 682; Hinnant v. R. R., 202 N. C., 489; Ward v. R. R., 206 N. C., 530; and Beach v. Patton, 208 N. C., 134.

The judgment as of nonsuit as to the defendant city of Winston-Salem is

Affirmed.