Moore v. Moore

150 S.E.2d 75 (1966)

268 N.C. 110

Danny J. MOORE, by his Next Friend, Jay Moore v. Laura H. MOORE.

No. 111.

Supreme Court of North Carolina.

September 21, 1966.

*77 Harvey Hamilton, Jr., Henry C. Boshamer, Morehead City, for plaintiff appellant.

George H. McNeil, Morehead City, and Joseph C. Olschner, Jacksonville, for defendant appellee.

HIGGINS, Justice.

This appeal presents the question of law whether the plaintiff offered evidence sufficient to permit the jury to find (1) the defendant was guilty of the act of negligence alleged in the complaint; and, if so, (2) whether such act proximately caused the plaintiff's injury. In such cases the evidence is sufficient if, upon its fair and reasonable consideration, it permits the jury to make the required findings. Davis v. Parnell, 260 N.C. 522, 133 S.E.2d 169; Griffin v. Blankenship, 248 N.C. 81, 102 S.E.2d 451. The proof may be by evidence, direct, circumstantial, or a combination of both. Lane v. Dorney, 252 N.C. 90, 113 S.E.2d 33; Kirkman v. Baucom, 246 N.C. 510, 98 S.E.2d 922.

To permit recovery for an injury, the jury must find the defendant was guilty of one or more of the negligent acts alleged and that the injurious result was reasonably foreseeable. Jenkins v. Leftwich Electrical Co., 254 N.C. 553, 119 S.E.2d 767. Negligence is the failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff under the circumstances surrounding them. Mattingly v. North Carolina R. R., 253 N.C. 746, 117 S.E.2d 844. The breach of duty may be by negligent act or a negligent failure to act. Williams v. Kirkman, 246 N.C. 510, 98 S.E.2d 922.

Ordinarily, before conduct is actionable, injury from it must be reasonably foreseeable. "The law only requires reasonable foresight, and when the injury complained of is not reasonably foreseeable, in the exercise of due care, the party whose conduct is under investigation is not answerable therefor. (citing authorities) * * * One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable." Herring v. Humphrey, 254 N.C. 741, 119 S.E.2d 913, 91 A.L.R. 2d 1320.

In this case two hurdles confront the plaintiff. Both must be cleared before he gets to the jury. (1) The plaintiff must have offered some evidence the defendant kept for use in the home a defective extension cord and that she had actual or constructive knowledge of the defect. (2) She should have reasonably foreseen that the plaintiff was likely to sustain injury as a result of the use being made of the cord. The evidence discloses that the defendant bought the cord new a month or two before July 25, 1964. She had used it only a time or two. The defendant sent her daughter for the cord and gave instructions that it be used to connect the current with the lamp on the night stand. There is no evidence the wires were exposed or that the cord was defective prior to the accident. After the accident there was a break in the insulation near the plug. In this connection, it should be remembered that Danny was discovered on the floor with the plug in his mouth and sparks were flying from the wires. Whether he broke the insulation or whether grounding the circuit caused the insulation to burn off is left to conjecture.

During the entire time the children were being put to bed, Danny's mother was present, actively participating. She *78 returned to the room on two occasions. Each time Danny was in his bed. Should the defendant have anticipated Danny would leave his bed, ground the current by taking the plug in his mouth and thereby injure himself? Such an unfortunate and regrettable result can only be classed as remotely and slightly probable. Such is not sufficient foundation to support a finding of actionable negligence. Herring v. Humphrey, supra; Brady v. Southern R. R., 222 N.C. 367, 23 S.E.2d 334.

The other assignments of error relate to the refusal of the court to permit the plaintiff's witnesses, Jay Moore and Harold Collins, to say that Kitty Moore and Lovie Jane Moore had made statements different from their testimony. The court was correct in excluding this evidence. Both girls were called and testified as witnesses for the plaintiff. The party who offered them could not contradict nor impeach them by showing they had made different statements at other times. State v. Tilley, 239 N.C. 245, 79 S.E.2d 473; State v. Cohoon, 206 N.C. 388, 174 S.E. 91; Smith v. Atlantic & C. Air Line R. R., 147 N.C. 603, 61 S.E. 575.

The plaintiff failed to offer evidence sufficient to permit a finding of liability on the part of the defendant. The judgment of nonsuit was proper and is

Affirmed.