Hart v. Curry, 238 N.C. 448 (1953)

Oct. 21, 1953 · Supreme Court of North Carolina

238 N.C. 448

REBECCA SIMPSON HART (Formerly REBECCA SIMPSON), Admr’x. of G. B. SIMPSON, v. FRANCIS H. CURRY.

(Filed 21 October, 1953.)

Negligence § SI—

It is not required that defendant should have been able to anticipate the precise injury which occurred in order for his negligent act or omission to be the proximate cause of the injury, but it is sufficient for this purpose if defendant, in the exercise of reasonable care, might have foreseen that some injury would probably result therefrom.

Appeal by plaintiff from Bone, J., June Term, 1953, of Pasquotank.

This is a civil action to recover for the wrongful death of the plaintiff’s intestate which it is alleged resulted from the negligence of the defendant.

The facts with respect to- the manner in which the plaintiff’s intestate met his death are fully stated in the opinion on a former appeal, reported in 237 N.C. 260, 74 S.E. 2d 649, and will not be restated herein.

In the trial below the jury answered the issue of negligence against the plaintiff and judgment was entered on the verdict. The plaintiff appeals, assigning error.

Robert B. Lowry and John H. Hall for appellant.

LeRoy & Goodwin for appellee.

Denny, J.

The plaintiff assigns as error the following portion of the charge to the jury: “For it to be said that the defendant’s negligence was tbe proximate cause of tbe death of plaintiff’s intestate, it must be shown that tbe death of plaintiff’s intestate was tbe natural and probable result of tbe defendant’s negligence, and that it ought to have been foreseen, in tbe light of all of tbe surrounding facts and circumstances.”

This instruction is not in accord with our decisions on tbe question of foreseeability. Tbe test of foreseeability does not require that tbe negligent person should have been able to foresee tbe injury in the precise form in which it actually occurred, or to anticipate tbe particular consequences which actually flowed from bis act or omission. 38 Am. Jur., Negligence, section 62, page 713.

All that tbe plaintiff is required to prove on tbe question of foreseeability, in determining proximate cause, is that in “tbe exercise of reasonable care, tbe defendant might have foreseen that some injury would result from bis act or omission, or that consequences of a generally injurious nature might have been expected.” 21 A. & E. Ency. of Law (2nd Ed.), page 487, quoted with approval in Drum v. Miller, 135 N.C. 204 (p. 215), 47 S.E. 421, 65 L.R.A. 890, 102 Am. St. Rep. 528; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E. 2d 63; McIntyre v. Elevator Co., 230 N.C. 539, 54 S.E. 2d 45; Lee v. Upholstery Co., 227 N.C. 88, 40 S.E. 2d 688.

In Drum v. Miller, supra, tbe court instructed tbe jury that before they could find for tbe plaintiff they “were required to find that tbe defendant was at tbe time able to foresee, by tbe exercise of ordinary care, not only that injury would result but that tbe particular injury which was received by tbe plaintiff would be tbe natural and probable consequence of bis act.” This instruction was held to be erroneous and prejudicial to tbe plaintiff.

Likewise, in tbe instant case, tbe assignment of error must be sustained. Tbe plaintiff is entitled to a new trial and it is so ordered.

New trial.