Taylor v. STONEWALL JACKSON MAN. TRAIN. & IND. SCH.

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167 S.E.2d 787 (1969)

5 N.C. App. 188

Millie Sumpter TAYLOR, Administratrix of the Estate of Melvin Taylor, Deceased v. STONEWALL JACKSON MANUAL TRAINING AND INDUSTRIAL SCHOOL.

No. 6919IC199.

Court of Appeals of North Carolina.

June 18, 1969.

*789 West & Groome, by Ted G. West, Lenoir, for plaintiff-claimant.

Townsend & Todd, by J. R. Todd, Jr., Lenoir, for defendant.

BROCK, Judge.

Claimant argues that the finding and conclusion by the Industrial Commission that the driver of defendant's dump truck was not negligent is contrary to the greater weight of the evidence. "The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony." Anderson v. Lincoln Construction Co., 265 N.C. 431, 144 S.E.2d 272. The appellate courts do not retry the facts, notwithstanding that the appellate court, if it had been the fact finding body, might have reached a different conclusion. McGill v. Lumberton, 218 N.C. 586, 11 S.E.2d 873. If in any reasonable view of it, the evidence is sufficient to support the critical findings and conclusions of the Industrial Commission, such findings and conclusions must be upheld. Keller v. Wiring Co., 259 N.C. 222, 130 S.E.2d 342.

It is a sad and tragic event whenever the life of a child is cut short, but the State cannot be an absolute insurer of the safety of everyone committed to its custody. Before an award of damages can be made under the Tort Claims Act, there must be a finding of a negligent act by an officer, employee, servant or agent of the State. G.S. ยง 143-291. In our opinion a reasonable view of the evidence supports the critical findings and conclusions in this case.

*790 Because of what has heretofore been said, the question of the finding and conclusion respecting contributory negligence on the part of claimant's intestate becomes immaterial and we do not pass upon that phase of the appeal.

Affirmed.

CAMPBELL and MORRIS, JJ., concur.