Annotate this Case

118 S.E.2d 615 (1961)

254 N.C. 252


No. 164.

Supreme Court of North Carolina.

March 8, 1961.

*616 Allsbrook, Benton & Knott, Roanke Rapids, for plaintiff appellant.

Uzzell & Dumont, Asheville, for defendant appellee.

WINBORNE, Chief Justice.

The determinative question to be decided in case on appeal is whether or not the trial court erred in allowing defendant's motion for nonsuit.

Taking the evidence offered upon the trial in the light most favorable to the plaintiff and giving to her the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, as is done when considering a motion for judgment of nonsuit, it is manifest that the plaintiff has failed to make out a case for the jury. Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661.

In order to establish actionable negligence plaintiff must show that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed to the plaintiff under the circumstances in which they were placed, and that such negligent breach of duty was the proximate cause of the injurya 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 was probable, under all the facts as they existed. Ramsbottom v. Atlantic Coast Line R. R., 138 N.C. 38, 50 S.E. 448. See also Whitt v. Rand, 187 N.C. 805, 123 S.E. 84; Mills v. Moore, supra; Rogers v. Green, 252 N.C. 214, 113 S.E.2d 364.

Negligence is not presumed from the mere fact of injury. The plaintiff is required to offer legal evidence tending to establish beyond a mere speculation or conjecture every essential element of negligence, and upon failure to do so nonsuit is proper. And in this connection, whether or not there is enough evidence to support a material issue is a question of law. Mills v. Moore, supra.

There is no evidence in the present case from which a jury could find that the defendant was responsible for the mud and clay being on the highway. True, there is evidence that the mud and clay caused the plaintiff to skid, but there is no evidence in the record as to how or when the mud and clay got there. The testimony of State Highway Patrolman, Wallace E. Brown, was the only evidence tending to show how the mud and dirt got on the surface of the highway. He testified: "The shoulder was a clay type shoulder which was very soft and wet. There was mud on the road; some on both sides of the road; it is not impossible that it was the kind of mud and dirt, the amount, the quantity, and the way it was distributed that can be brought upon the highway by automobiles * * *."

At most, the plaintiff's evidence tends only to show that the defendant had moved some dirt from the area adjacent to the highway hard-surface in connection with a sewer construction project. Indeed, the plaintiff testified that she failed to observe any dirt upon the highway when she passed the scene of the accident earlier on the same day. And in this connection the plaintiff's *617 own evidence is to the effect that defendant's employees had done no work in the area of the accident since Friday, 9 May, 1958.

Furthermore, Officer Brown testified that he had patrolled the scene of the accident prior to its occurrence and no dirt or clay was observed on the highway. Thus the conclusion is that the plaintiff has not offered sufficient evidence, as stated by Parker, J., in Parker v. Wilson, 247 N.C. 47, 100 S.E.2d 258, 262, "to take the case out of the realm of conjecture and into the field of legitimate inference from established facts." To like effect is Goldman v. Kossove, 253 N.C. 370, 117 S.E.2d 35, 38, where it is said: "A resort to conjecture or surmise is guesswork, not decision and `a cause of action must be something more than a guess'."

We have considered defendant's remaining assignments of error and no prejudicial error is made to appear. For reasons stated the judgment below should be and is