Hart v. Curry

Annotate this Case

78 S.E.2d 170 (1953)

238 N.C. 448


No. 28.

Supreme Court of North Carolina.

October 21, 1953.

Robert B. Lowry and John H. Hall, Elizabeth City, for appellant.

LeRoy & Goodwin, Elizabeth City, for appellee.

DENNY, Justice.

The plaintiff assigns as error the following portion of the charge to the jury: "For it to be said that the defendant's negligence was the proximate cause of the death of plaintiff's intestate, it must be shown that the death of plaintiff's intestate was the natural and probable result of the defendant's negligence, and that it ought to have been foreseen, in the light of all of the surrounding facts and circumstances."

This instruction is not in accord with our decisions on the question of foreseeability. The test of foreseeability does not require that the negligent person should have been able to foresee the injury in the precise form in which it actually occurred, or to anticipate the particular consequences which actually flowed from his act or omission. 38 Am.Jur., Negligence, section 62, page 713.

All that the plaintiff is required to prove on the question of foreseeability, in determining proximate cause, is that in "the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected." 21 A. *171 & E. Ency. of Law, 2d Ed., page 487, quoted with approval in Drum v. Miller, 135 N.C. 204, 215, 47 S.E. 421, 65 L.R.A. 890, 102 Am.St.Rep. 528; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, 29 A.L.R.2d 682; McIntyre v. Monarch Elevator & Co., 230 N.C. 539, 54 S.E.2d 45; Lee v. Carolina Upholstery Co., 227 N.C. 88, 40 S.E.2d 688.

In Drum v. Miller, supra, the court instructed the jury that before they could find for the plaintiff they "were required to find that the defendant, was at the time, able to foresee, by the exercise of ordinary care, not only that injury would result, but that the particular injury which was received by the plaintiff would be the natural and probable consequence of his act." [135 N.C. 204, 47 S.E. 425.] This instruction was held to be erroneous and prejudicial to the plaintiff.

Likewise, in the instant case, the assignment of error must be sustained. The plaintiff is entitled to a new trial and it is so ordered.

New trial.