Annotate this Case

120 S.E.2d 540 (1961)

255 N.C. 194


No. 739.

Supreme Court of North Carolina.

June 16, 1961.

*541 King & Cox, Laurinburg, for plaintiff appellant.

Mason & Williamson, Laurinburg, for defendant appellee.

WINBORNE, Chief Justice.

The only question presented for decision is whether or not the Superior Court committed error in granting defendant's motion for judgment of nonsuit at the close of plaintiff's evidence.

Taking the evidence offered by the plaintiff, as shown in the record of case on appeal, in the light most favorable to the plaintiff, giving to him the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, as is done in such cases, a negative answer is deemed proper. Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Heuay v. Halifax Construction Co., 254 N.C. 252, 118 S.E.2d 615.

The plaintiff first alleges and contends that the equipment was defective in that the hooks would not properly hold the cotton as it was being lifted. However, there is no evidence in the record that the equipment in question was defective in any way on the date here involved. Indeed, all the evidence presented by the plaintiff is to the effect that the equipment was in good condition.

*542 The operator of the equipment, James W. McLean, testified that "There was nothing wrong with the machine." He further testified that nothing was wrong with the hooks that day. William James McPhatter and W. G. Buie III, both of whom were familiar with the equipment, also testified that there was nothing wrong with it.

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 negligence 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 result was probable under all the facts as they existed. Heuay v. Halifax Construction Co., supra. And when the plaintiff relies upon circumstantial evidence, he must establish negligence and proximate cause as a reasonable inference from the facts proved and not circumstances which raise a mere conjecture or surmise. Lane v. Dorney, 250 N.C. 15, 108 S.E.2d 55.

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. Heuay v. Halifax Construction Co., supra.

The plaintiff's evidence does show that other bales of cotton had fallen from this equipment at other times, but upon the record in the present case there is no evidence that connects the falling of the cotton on October 3, 1958 (date of the injury complained of herein), and any other time with any defective condition of the defendant's equipment.

The doctrine of res ipsa loquitur is not applicable in the present case. For the doctrine to apply the plaintiff must prove (1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily doesn't happen without negligence on someone's part, (3) that the instrumentality which caused the injury was under the exclusive control and management of the defendant. Lane v. Dorney, supra; Lea v. Carolina Power and Light Co., 246 N.C. 287, 98 S.E.2d 9; Young v. Anchor Co., 239 N.C. 288, 79 S.E.2d 785.

Here the plaintiff's own testimony shows that the equipment was not entirely under the control and management of the defendant Gin Company. Indeed, he testified that he put the hooks in the bales of cotton himself and generally assisted in the loading operation. In this connection he testified: "On that morning, the Gin Company did not have another employee to assist in putting the hooks in the bales; and I was requested to put the hooks in. I loaded 15 bales before the accident. I put the hooks under the steel band that went around the bale of cotton."

As stated by Adams, J., in Saunders v. Norfolk & W. R. R., 185 N.C. 289, 117 S.E. 4, 5, 29 A.L.R. 1258: "It is essential to show that the appliance, machinery, device, or other agency causing the injury is under the management of the defendant or his servants * * *."

The plaintiff next alleges and contends that the defendant's employee was negligent in the operation of the equipment. Again, there is no evidence in the record that the operator was negligent, or evidence from which an inference of negligence can be made. The only evidence relating to the operation of the equipment is by the operator, James W. McLean. He testified: "I didn't do anything wrong that day, operated it as best I could as far as I am concerned. I did not let the bale fall. There is *543 nothing wrong with the way I operated the equipment. Nobody accused me of dropping this bale."

In fine, there is no evidence in this record showing or tending to show that the defendant's equipment was defective or that the defendant's employee negligently operated it. Therefore, the conclusion is that the evidence offered is insufficient to show actionable negligence on the part of the defendant.

For reasons stated, the judgment below is


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