McNair v. Richardson

92 S.E.2d 459 (1956)

244 N.C. 65

Kamus McNAIR, Jr. v. Melvin Lee RICHARDSON.

No. 458.

Supreme Court of North Carolina.

May 2, 1956.

Jones & Jones, Rockingham, for plaintiff, appellee.

Bynum & Bynum, Rockingham, and Broughton & Broughton, Raleigh, for defendant, appellant.

PARKER, Justice.

Plaintiff was driving his automobile in a southeasterly direction on Hatcher Road in Richmond County; the defendant was driving his automobile in a northwesterly direction on the same road. The automobiles were meeting, and collided in the road. The plaintiff offered evidence tending to show that the defendant's automobile came across the middle of the road onto his side, and ran into him. The defendant offered evidence tending to show that the plaintiff's *460 automobile ran into him on his side of the road. The collision occurred 100 feet north of where Hatcher Road intersects another road. It was daytime. The court properly denied the defendant's motions for judgment of nonsuit.

The defendant assigns as error this part of the charge:

"But there is a distinction between the case of an injury inflicted in the performance of a lawful act and one in which the act causing the injury is in itself unlawful, or is at least a willful wrong. In the latter case the defendant is liable for any consequences that might flow from his act as the proximate cause thereof, whether he could have foreseen or anticipated it or not; but when the act is lawful, the liability depends not upon the particular consequence or result that may flow from it, but upon the ability of a prudent man, in the exercise of ordinary care, to foresee that injury or damage will naturaly or probably be the result of his act. In one case he is presumed to intend the consequences of his unlawful act, but in the other, while the act, if lawful, it must be performed in a careful manner, otherwise it becomes unlawful, if a prudent man in the exercise of proper care can foresee that it will naturally or probably cause injury to another, though it is not necessary that the evil result should be, in form, foreseen."

It is a fundamental principle that the only negligence of legal importance is negligence which proximately causes or contributes to the injury under judicial investigation. Cox v. Hennis Freight Lines (Matthews v. Hennis Freight Lines), 236 N.C. 72, 72 S.E.2d 25; Smith v. Whitley, 223 N.C. 534, 27 S.E.2d 442; Byrd v. Southern Express Co., 139 N.C. 273, 51 S.E. 851.

In Osborne v. Atlantic Ice & Coal Co., 207 N.C. 545, 177 S.E. 796, 797, this Court said: "Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable negligence is a requisite for recovery in an action for personal injury negligently inflicted."

It is well settled by our decisions that foreseeability of injury is a requisite of proximate cause. Davis v. Carolina Power & Light Co., 238 N.C. 106, 76 S.E.2d 378; Cox v. Hennis Freight Lines, supra; Wood v. Carolina Telephone & Tel. Co., 228 N.C. 605, 46 S.E.2d 717, 3 A.L.R.2d 1; Watkins v. Taylor Furnishing Co., 224 N.C. 674, 31 S.E.2d 917; Montgomery v. Blades, 222 N.C. 463, 23 S.E.2d 844; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808; Beach v. Patton, 208 N.C. 134, 179 S.E. 446.

In Ham v. Greensboro Ice & Fuel Co., 204 N.C. 614, 169 S.E. 180, 182, the Court said: "All of the decisions of this state since Ledbetter v. English, 166 N.C. 125, 81 S.E. 1066, concur in the view that the violation of an ordinance or of a statute designed for the protection of life and limb is negligence per se. Notwithstanding, the same decisions do not permit recovery for the mere violation of the statute, unless there was a causal relation between the violation and the injury." See also Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311.

Barnhill, C. J., said for the Court in an illuminating opinion in Aldridge v. Hasty, supra [240 N.C. 353, 82 S.E.2d 338]: "When the action is for damages resulting from the violation of a motor vehicle regulation, does the doctrine of foreseeability apply? We are constrained to answer in the affirmative. Whatever the conflict of decision in other jurisdictions on this question may be, it is uniformly held that to entitle a plaintiff to recover in an action bottomed on the violation of a criminal statute it must be made to appear that the injury or damage complained of was the natural and probable result of such violation. Causal connection between the unlawful act committed and the injury or damage sustained must be shown; that is to say, proximate cause must be established. *461 And we relate foreseeability to proximate cause as an essential element thereof."

The court in its charge instructed the jury to the effect that a person doing an unlawful act is liable for any consequences that might flow from his act as the proximate cause thereof, whether he could have foreseen or anticipated it or not. The plaintiff's action against the defendant was based upon the defendant's alleged unlawful acts in operating his automobile in violation of certain statutes regulating the driving of motor vehicles upon the highways, and designed for the protection of life and limb. The plaintiff does not contend that the defendant's acts in causing his injury were lawful acts. This instruction removes foreseeability as an essential element of proximate cause, and in substance told the jury that, in plaintiff's action for damages allegedly resulting from the violation or violations of motor vehicle regulations, the doctrine of foreseeability did not apply.

For error in the charge the defendant is entitled to a

New trial.

JOHNSON, J., not sitting.