Lee v. Stevens

111 S.E.2d 623 (1959)

251 N.C. 429

Maude T. LEE v. James R. STEVENS and wife, Evelyn K. Stevens.

No. 526.

Supreme Court of North Carolina.

December 16, 1959.

*626 Edgar R. Bain, Lillington, and Wilson & Johnson, by W. A. Johnson, Dunn, for plaintiff, appellee.

Broughton & Broughton, Raleigh, and D. K. Stewart, Dunn, for defendants, appellants.

HIGGINS, Justice.

The evidence favorable to the plaintiff is sufficient to go to the jury on the issue of defendants' actionable negligence in causing the accident on February 14, 1957. It is likewise sufficient to show the plaintiff suffered injury and damage as a result of that accident. Upon a finding of actionable negligence, the showing of damage in any amount will take the case to the jury. Assignment of Error No. 13, therefore, cannot be sustained.

The defendants' assignments of error Nos. 14 and 15 are based on the court's refusal (1) to withdraw from the jury the evidence relating to the cerebral hemorrhage, and (2) to instruct the jury to answer the first issue, "No." These assignments require us to determine whether there is substantial evidence the plaintiff's cerebral hemorrhage suffered on March 22 resulted from the injury she sustained in the accident on February 14.

The plaintiff's own testimony is quoted in the statement of facts. By way of showing the lights and shadows in the picture she painted of her condition subsequent to the injury, we have the following admissions made by her: After the accident, a short rest, an aspirin, and a coca cola, she drove her automobile from Garner to Raleigh for repairs. A friend drove her to her home in Dunn. She did not call or consult a physician. She worked continuously from the day of the accident until she had the cerebral hemorrhage on March 22.

The lay testimony, including the plaintiff's own evidence, fails to show causal relationship between the accident and the stroke.

The testimony of plaintiff's expert witness, Dr. Lilly, boiled down to its essence is that a causal relationship between the accident and the stroke is a possibility. He was frank to admit the cause of the hemorrhage is a matter of speculation or conjecture. The other medical evidence in the case came from Dr. LeRoy Allen, a neurological surgeon called in consultation by Dr. Lilly, but examined as a witness by the defendants. Inasmuch as Dr. Allen was a witness for the defendants, his evidence may be considered to the extent only that it explains or fills out, but does not contradict, the plaintiff's evidence. Dr. Allen testified the cause of cerebral hemorrhage in more than 95 per cent of the cases is (1) rupture of a congenital aneurism of the brain, or weak wall area in a blood vessel present since birth; and (2) high blood pressure or hardening of the arteries and weakening of the walls in the blood vessels of the brain. "My opinion is she had a cerebral hemorrhage due either to a ruptured aneurism or to high blood pressure. * * * My opinion is she would have had the hemorrhage had she not had the accident."

The medical testimony, added to the other evidence, leaves the causal relationship *627 between the accident and the stroke in the realm of conjecture and speculation. The authorities in this State are uniform in holding such evidence is insufficient to support a verdict and judgment. The rules taken from earlier cases were restated by Justice Walker in the case of Byrd v. Southern Express Co., 139 N.C. 273, 51 S.E. 851: "The fact that the 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 the negligence, unless the connection of cause and effect is established; and the negligent act of the defendant must not only be the cause, but the proximate cause, of the injury. * * * The burden was therefore upon the plaintiff to show the defendant's * * * negligence proximately caused his intestate's death, and the proof should have been of such a character as reasonably to warrant the inference of the fact required to be established, and not merely sufficient to raise a surmise or conjecture as to the existence of the essential fact. * * * `We may say with certainty that evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict, and should not be left to the jury.' * * * `Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character as that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence.'"

Byrd v. Southern Express Co., supra, was decided in 1905. It was cited with approval by this Court in Lane v. Bryan, decided in 1957 and reported in 246 N.C. 108, 97 S.E.2d 411. Between the decision in Byrd v. Southern Express Company and Lane v. Bryan, this Court has cited the Byrd case with approval in more than forty cases.

In commenting on the rule in the Byrd case, Justice Brogden had this to say in Poovey v. International Sugar Co., 191 N.C. 722, 133 S.E. 12, 14: "This rule is both just and sound. Any other interpretation of the law would unloose a jury to wander aimlessly in the fields of speculation."

We conclude the evidence was insufficient to show causal relationship between the plaintiff's injury in the accident and the cerebral hemorrhage five weeks later. The defendants' motion to strike the evidence relating thereto should have been allowed. The first issue was improperly submitted for lack of evidentiary support.

The trial court having denied the motion to withdraw from the jury the evidence relating to the cerebral hemorrhage, the defendants were entitled to a peremptory instruction to answer the first issue, "No."

For the reasons here assigned the judgment of the Superior Court is set aside. The defendants are entitled to a

New trial.