State v. GatewoodAnnotate this Case
86 S.E.2d 195 (1955)
241 N.C. 606
STATE of North Carolina on Relation of Charlie GARLAND, Administrator of the Estate of Moses Garland, Deceased, v. Mary F. GATEWOOD, Administratrix of J. Y. Gatewood, Deceased, Tom Buck, Deputy Sheriff, Private J. R. Harris, State Highway Patrolman, National Surety Corporation and St. Paul Mercury Indemnity Company.
Supreme Court of North Carolina.
March 9, 1955.
*196 C. O. Pearson, E. H. Gadsden and William A. Marsh, Jr., Durham, for plaintiff, appellant.
John W. Hardy, Yanceyville, for J. R. Harris.
Jordan & Wright and Charles E. Nichols, Greensboro, for St. Paul Mercury Indemnity Co.
This case is based on negligence. The burden rests on the plaintiff to produce evidence sufficient to establish the two essential elements of actionable negligence: one, that the defendants were guilty of a negligent act or omission; and two, that such act or omission proximately caused the death of decedent. Sowers v. Marley, 235 N.C. 607, 70 S.E.2d 670.
"Negligence does not create liability unless it is the proximate cause of injury, and foreseeability is an essential of proximate cause." Wood v. Carolina Telephone & Telegraph Co., 228 N.C. 605, 46 S.E.2d 717, 719, 3 A.L.R.2d 1.
Moses Garland had not been in the custody of the officers for sometime before he was killed. Cases concerned with injuries to prisoners while in custody of a sheriff or officer of the law, like Dunn v. Swanson, 217 N.C. 279, 7 S.E.2d 563, are not in point. Did he step in front of the train, did he attempt to board a moving train, or was he down on the railroad tracks, when struck? The evidence gives no answer. Had he partially or practically sobered up before death? We do not know, for the Record is silent as to the hour of his death. The exact circumstances of his death are left in the realm of speculation and conjecture. Even if we concede, which we do not, that the officers were negligent in not locking the doors of the patrol car to prevent Garland getting out, or in not keeping him guarded in the car, or in not searching immediately for him when they heard he had escaped, or in any other respect, we are of opinion, and so hold, that such negligence was not a proximate cause of Moses Garland's untimely death, that 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 *197 was probable under all the facts as they existed." Whitt v. Rand, 187 N.C. 805, 123 S.E. 84, 86.
There was no error in entering the judgment of nonsuit, and it is therefore
BARNHILL, C. J., and DEVIN, J., took no part in the consideration or decision of this case.