Deaver v. Deaver

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72 S.E.2d 225 (1952)

236 N.C. 186

DEAVER v. DEAVER.

No. 92.

Supreme Court of North Carolina.

September 17, 1952.

*226 J. M. Baley, Jr. and Charles E. Mashburn, Marshall, for plaintiff appellant.

A. E. Leake, Marshall, and J. W. Haynes, Asheville, for defendant appellee.

BARNHILL, Justice.

Decision of the question presented on this appeal may rest upon the assumption that defendant was guilty of negligence in the manner in which he maintained and operated his saw and in permitting sawdust and scraps of lumber to accumulate around the saw bench, and that plaintiff occupied the position of an invitee or servant. Even so, the evidence offered, considered in the light most favorable to plaintiff, fails to make out a case for the jury.

Negligence does not create liability unless it is the proximate cause of the injury complained of. And foreseeability is an essential element of proximate cause. Wood v. Carolina Telephone & Telegraph Co., 228 N.C. 605, 46 S.E.2d 717, 3 A.L.R.2d 1; Lee v. Carolina Upholstery Co., 227 N.C. 88, 40 S.E.2d 688; McIntyre v. Monarch Elevator & Mach. Co., 230 N.C. 539, 54 S.E.2d 45; Gant v. Gant, 197 N.C. 164, 148 S.E. 34, 35.

For us to say that defendant was required to foresee a mishap of the kind and nature described by plaintiff and her witness would require of him a degree of foresight or prevision not exacted by the law of negligence. What is said in Gant v. Gant, supra, is appropriate here:

"No man, by the exercise of reasonable care, however high and rigid the standard of such care, upon the facts in any particular case, can foresee or forestall the inevitable accidents, and contingencies which happen and occur daily, some bringing sorrow and loss, and some bringing joy and profit, all however contributing, in part, to make up the sum total of human life. The law holds men liable only for the consequences of their acts, which they can and should foresee and by reasonable care and prudence, provide for."

We note that plaintiff alleges she slipped on the "wet and slippery" turf around the saw bench while she undertook to prove her case on the theory the debris which defendant had permitted to accumulate in the narrow space between the house and saw bench through which she had to pass was the cause of her fall. Even so, the variance is not material here for, in any event, the evidence fails to disclose actionable negligence on the part of the defendant.

The judgment entered in the court below is

Affirmed.