Pettus v. Sanders

130 S.E.2d 330 (1963)

259 N.C. 211

William Boyce PETTUS v. Elvine SANDERS and Robert Lee Stewart.

No. 167.

Supreme Court of North Carolina.

April 10, 1963.

*332 Hollowell & Stott, Gastonia, for defendant appellants.

Donald E. Ramseur, Gastonia, for plaintiff appellee.

BOBBITT, Justice.

Careful consideration impels the conclusion that the evidence, when considered in the light most favorable to plaintiff, was sufficient to require submission of all issues for jury determination. Hence, defendants' motion for judgment of nonsuit was properly denied.

Since a new trial is awarded, we refrain from discussing the evidence presently before us except to the extent necessary to show the reasons for the conclusion reached. Mason v. Gillikin, 256 N.C. 527, 530, 124 S.E.2d 537, and cases cited.

In the portion of the charge relating to the first issue, the court defined proximate cause as follows: "Proximate cause, being the other element (of actionable negligence), means the real, the dominant, the efficient cause, the cause without which the accident would not have occurred. An act is said to be the proximate cause or a proximate cause of an injury and damage when in a natural and continuous sequence, unbroken by any new and independent cause, it produces the result complained of, and without which the injury and damage would not have occurred and there can be more than one proximate cause of any injury and damage." Defendants excepted to this instruction and assign as error the court's failure to instruct the jury that foreseeability of injury is an essential element of proximate cause.

Under our decisions, foreseeability is a requisite of proximate cause. McNair v. Richardson, 244 N.C. 65, 67, 92 S.E.2d 459, and cases cited. This is true notwithstanding the alleged negligence is a violation of a safety statute and therefore negligence per se. Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Billings v. Renegar, 241 N.C. 17, 84 S.E.2d 268; McNair v. Richardson, supra; White v. Lacey, 245 N.C. 364, 368, 96 S.E.2d 1; Basnight v. Wilson, 245 N.C. 548, 551, 96 S.E.2d 699.

The quoted instruction is correct with reference to the element(s) of proximate cause referred to therein. However, the court inadvertently failed to instruct the jury that a proximate cause is also a cause "from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable under facts as they existed." Adams v. State Board of Education, 248 N.C. 506, 511, 103 S.E.2d 854, and cases cited; Ramsbottom v. Atlantic Coast Line R. R., 138 N.C. 38, 41, 50 S.E. 448.

Under our decisions, the court's failure to instruct the jury that foreseeability of injury is an essential element of proximate cause entitles defendants to a new trial. McNair v. Richardson, supra; Whitley v. Jones, 238 N.C. 332, 78 S.E.2d 147. In McNair, a new trial was awarded on the ground the court's 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." In Whitley, a new trial was awarded on the ground "(t)he court in its charge on proximate cause omitted to give the essential element of foreseeability of injury." See Pittman v. Swanson, 255 N.C. 681, 685, 122 S.E.2d 814. In the decisions cited by plaintiff in support of the quoted instruction, whether the court erred for failure to instruct that foreseeability of injury is an essential element of proximate cause was not presented or considered.

Defendants assign as error the asserted failure of the court to relate and apply the *333 law to the variant factual situations having support in the evidence as required by G.S. § 1-180. Westmoreland v. Gregory, 255 N.C. 172, 177, 120 S.E.2d 523; Pittman v. Swanson, supra. Discussion of these assignments of error is unnecessary. However, in view of plaintiff's contention that error in the charge, if any, was technical and not prejudicial, we deem it appropriate to call attention to the crucial factual controversy involved in the negligence issue.

The evidence as to whether Stewart's view of plaintiff was obstructed was in sharp conflict.

Evidence favorable to plaintiff tended to show he was crossing Page within an unmarked crosswalk at the intersection of Page and York; that Stewart's view was unobstructed as he approached this unmarked crosswalk; and that Stewart saw plaintiff, or by the exercise of due care could have seen him, as he proceeded within the unmarked crosswalk from the north toward the south side of Page.

Evidence favorable to defendants tended to show Page was thirty-two feet wide; that plaintiff when struck had proceeded twenty-four feet toward the south side of Page; that Stewart, proceeding east on Page at a speed of 24-25 miles per hour in a 35-mile per hour speed zone, was blinded momentarily by the lights of an automobile which had proceeded south on York and made a right turn and headed west into Page; that plaintiff, who according to one witness "attempted to rush across," crossed "(j)ust as this vehicle * * * turned to the right from York on to Page to go west on Page"; that plaintiff came from behind this automobile and in view of Stewart when Stewart was "approximately 5 to 7 feet away from him"; and that Stewart, after the impact, "went approximately 5 to 7 feet."

Clearly, if the jury found the facts in accordance with the evidence most favorable to defendants, whether Stewart, by the exercise of due care, could have reasonably foreseen that a pedestrian would or might come from behind the automobile and into his path, is of crucial significance in determining whether Stewart was guilty of actionable negligence. We find no instruction in which the court undertook to relate and apply the law to this factual situation. Under these circumstances, we cannot say the failure to instruct the jury that foreseeability of injury is an essential element of proximate cause is technical rather than prejudicial error.

New trial.