Keener v. Litsinger

181 S.E.2d 781 (1971)

11 N.C. App. 590

Elvie M. KEENER v. Glenn M. LITSINGER and W. R. Grace & Company, a corporation.

No. 7119SC402.

Court of Appeals of North Carolina.

June 23, 1971.

*782 Bedford W. Black, Kannapolis, and Clarence E. Horton, Jr., Concord, for plaintiff appellant.

K. Michael Koontz, Concord, for defendant appellees.

CAMPBELL, Judge.

Plaintiff's first assignment of error is directed at the failure of the trial judge to define proximate cause in his charge to the jury. This is a valid assignment of error. Although the trial judge referred to proximate cause several times in the charge, nowhere in the charge do we find a proper definition of proximate cause. The closest that the court came to attempting a definition of proximate cause was when the court stated:

"Negligence without proximate cause the defendant is not liable, but negligence must be coupled with proximate cause, the cause without which the injury would not have occurred." (Emphasis added.)

It is clear that this short statement did not meet the definition set forth by the Supreme Court in Nance v. Parks, 266 N.C. 206, 146 S.E.2d 24 (1966):

"Proximate cause is `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 a result was probable under all the facts as they existed.' Mattingly v. North Carolina R. R. [Co.], 253 N.C. 746, 750, 117 S.E.2d 844, 847. Foreseeable injury is a requisite of proximate cause, which is, in turn, a requisite for actionable negligence. Osborne v. Atlantic Ice & Coal Co., 207 N.C. 545, 177 S.E. 796."

A proper definition of proximate cause is mandatory and a new trial will be ordered where a proper definition is not given. Barefoot v. Joyner, 270 N.C. 388, 154 S.E.2d 543 (1967). Here, the trial judge failed to give the proper definition.

New trial.

BRITT and GRAHAM, JJ., concur.