Alford v. Washington

92 S.E.2d 788 (1956)

244 N.C. 132

Mary Elizabeth ALFORD, Administratrix of the ESTATE of Charles S. Alford, Jr., Deceased, v. Melvert WASHINGTON and the City of Kinston, a Municipal Corporation.

No. 309.

Supreme Court of North Carolina.

May 23, 1956.

*793 Jones, Reed & Griffin, Kinston, for plaintiff, appellee.

White & Aycock, Kinston, for defendant, appellant.

*794 WINBORNE, Justice.

The foremost question on this appeal is whether or not the trial court erred in overruling plaintiff's motion for judgment as of nonsuit.

In respect thereto the evidence offered upon the trial in Superior Court is sufficient to make out a case against defendant for actionable negligence in connection with the collision between his Plymouth car and the Cauley Nash car as a result of which it clearly appears the electric wire was jarred loose from the poles, and dropped down upon the two cars. Hence the evidence is fully sufficient to support a finding by the jury of negligence on the part of the defendant in bringing about the situation disclosed by the evidence. And the evidence is sufficient to support a finding by the jury that the situation so brought about was one in which the occupants of the cars were in apparent peril and imminent danger of life or bodily injury.

Therefore, question arises as to whether plaintiff's intestate was guilty of contributory negligence in doing what the evidence tends to show he did do.

Ordinarily the law imposes upon a person sui juris the obligation to use ordinary care for his own protection, and the degree of such care should be commensurate with the danger to be avoided. Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543; Mintz v. Town of Murphy, 235 N.C. 304, 69 S.E.2d 849. Thus where a person seeing an electric wire knows that it is, or may be highly dangerous, it is his duty to avoid coming in contact therewith. See 18 Am.Jur. 471, Electricity 76; also Rice v. Lumberton, supra; Mintz v. Murphy, supra; Alford v. Washington, supra.

But "the rule is well settled that one who sees a person in imminent and serious peril through the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life, or serious injury, in attempting to effect a rescue, provided the attempt is not recklessly or rashly made." See Annotation 19 A.L.R. 4 on subject "Liability for death, or injury to, one seeking to rescue another." And the annotator of decided cases there goes on to say that some of the cases do not state the proviso, but probably it is implied in practically all of them. It is said, however, "All agree that the fact that the injury is sustained in attempting to save human life is a proper element for consideration upon the question of contributory negligence, and that the latter question ordinarily is one for the jury, and not for the Court." Attention is then called to cases in other jurisdictions, as well as Norris v. Atlantic Coast Line R. Co., 152 N.C. 505, 67 S.E. 1017, 1021, 27 L.R.A.,N.S., 1069.

In the Norris case, supra, our own Court, in opinion by Hoke, J., speaking of a situation the evidence tended to show was due to negligence of defendant, declared: "This being true, it is well established that, when the life of a human being is suddenly subjected to imminent peril through another's negligence, either a comrade or a bystander may attempt to save it, and his conduct is not subjected to the same exacting rules which obtain under ordinary conditions; nor should contributory negligence on the part of the imperiled person be allowed, as a rule, to affect the question. It is always required in order to establish responsibility on the part of defendant, that the company should have been in fault, but, when this is established, the issue is then between the claimant and the company; and, when one sees his fellow man in such peril, he is not required to pause and calculate as to court decisions, nor recall the last statute as to the burden of proof, but he is allowed to follow the promptings of a generous nature and extend the help which the occasion requires, and his efforts will not be imputed to him for wrong, according to some of the decisions, unless his conduct is rash to the degree of recklessness; and all of them say that full allowance must be made for the emergency presented. This principle is declared and sustained in many well-considered and authoritative decisions of the courts and in approved text-writers, and prevails without exception so far as we have examined", citing cases and quoting from some of them.

*795 Applying this principle to the facts presented in instant case, the trial judge properly overruled defendant's motion for judgment as of nonsuit and fairly submitted the case to the jury upon a charge, considered contextually, free from prejudicial error.

Hence the various assignments of error, based upon exceptions taken during the course of the trial, and to the charge of the court, and to the alleged failure of the court to properly charge, after due consideration fail to disclose harmful error. Therefore, in the judgment from which appeal is taken there is

No error.

DEVIN, J., took no part in the consideration or decision of this case.