Smith v. . Whitley

Supreme Court of North Carolina

Smith v. . Whitley

27 S.E.2d 442, 223 N.C. 534, 1943 N.C. LEXIS 318

CourtSupreme Court of North Carolina

DecidedNovember 3, 1943

StatusPublished

Cited by27 cases

This text of 27 S.E.2d 442 (Smith v. . Whitley) 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.

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Smith v. . Whitley, 27 S.E.2d 442, 223 N.C. 534, 1943 N.C. LEXIS 318 (N.C. 1943).

Pincite

Opinion

Per Curiam:.

The position principally relied upon and urged by the appellant is that there was' evidence that the pilot of the crashed aero-plane was piloting the machine and carrying a passenger without the license to carry passengers required by law. While it may be conceded that the pilot of the .aeroplane, the defendant Nelson, did not have such a license and was nevertheless carrying the plaintiff as a passenger, which would constitute negligence, there is no evidence in the record that this negligence, the absence of the passenger carrying license, was the proximate cause of the aeroplane crash. In truth, there is no evidence of what caused the crash. The plaintiff, James A. Smith, testified that “the plane went into a spin and crashed and I do not know why.” J. W. Nelson, one of the defendants, who was piloting the plane, testified as a *535 witness for tbe plaintiff: “I don’t know just wbj tbe plane crashed; it just came down in a spin with tbe nose to tbe ground.”

There must be a causal connection between tbe violation of tbe law, as tbe negligence relied upon, and tbe injury inflicted. Burke v. Coach Co., 198 N. C., 8, 150 S. E., 636; Jones v. Bagwell, 207 N. C., 378, 177 S. E., 170. “The breach of duty must be tbe cause of the damage. Tbe fact that tbe defendant has been guilty of negligence, followed by an injury, does not make him liable for that injury, which is sought to be referred to tbe negligence, unless tbe connection of cause and effect is established.” Byrd v. Express Co., 139 N. C., 273, 51 S. E., 851; Garter v. Realty Co., ante, 188, 25 S. E. (2d), 553. Tbe doctrine of res ipsa loquitur does not apply because any number of causes may have been responsible for tbe plane falling, including causes over which tbe pilot has absolutely no control, it being common knowledge that aeroplanes do fall without fault of tbe pilot. Rochester Cos & E. Corp. v. Dunlop, 266 N. Y. S., 469, Annotations 99 A. L. R., 186.

Tbe judgment of tbe Superior Court is

Affirmed.

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Per Curiam:.

The position principally relied upon and urged by the appellant is that there was' evidence that the pilot of the crashed aero-plane was piloting the machine and carrying a passenger without the license to carry passengers required by law. While it may be conceded that the pilot of the .aeroplane, the defendant Nelson, did not have such a license and was nevertheless carrying the plaintiff as a passenger, which would constitute negligence, there is no evidence in the record that this negligence, the absence of the passenger carrying license, was the proximate cause of the aeroplane crash. In truth, there is no evidence of what caused the crash. The plaintiff, James A. Smith, testified that “the plane went into a spin and crashed and I do not know why.” J. W. Nelson, one of the defendants, who was piloting the plane, testified as a *535 witness for tbe plaintiff: “I don’t know just wbj tbe plane crashed; it just came down in a spin with tbe nose to tbe ground.”

There must be a causal connection between tbe violation of tbe law, as tbe negligence relied upon, and tbe injury inflicted. Burke v. Coach Co., 198 N. C., 8, 150 S. E., 636; Jones v. Bagwell, 207 N. C., 378, 177 S. E., 170. “The breach of duty must be tbe cause of the damage. Tbe fact that tbe defendant has been guilty of negligence, followed by an injury, does not make him liable for that injury, which is sought to be referred to tbe negligence, unless tbe connection of cause and effect is established.” Byrd v. Express Co., 139 N. C., 273, 51 S. E., 851; Garter v. Realty Co., ante, 188, 25 S. E. (2d), 553. Tbe doctrine of res ipsa loquitur does not apply because any number of causes may have been responsible for tbe plane falling, including causes over which tbe pilot has absolutely no control, it being common knowledge that aeroplanes do fall without fault of tbe pilot. Rochester Cos & E. Corp. v. Dunlop, 266 N. Y. S., 469, Annotations 99 A. L. R., 186.

Tbe judgment of tbe Superior Court is

Affirmed.

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27 S.E.2d 442, 223 N.C. 534, 1943 N.C. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-whitley-nc-1943.

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