Lane v. Dorney, 250 N.C. 15 (1959)

April 8, 1959 · Supreme Court of North Carolina
250 N.C. 15

HAZEL M. LANE v. JESSIE L. DORNEY, Executrix of the Estate of HERBERT G. DORNEY, Deceased, and V. WILTON LANE, Administrator c.t.a. of the Estate of HERBERT S. LANE, Deceased, v. JESSIE L. DORNEY, Executrix of the Estate of HERBERT G. DORNEY, Deceased.

(Filed 8 April, 1959.)

1. Trial § 23a—

Nonsuit is properly entered when the evidence, considered in the Jight most favorable to the plaintiff and giving him the benefit of every reasonable intendment thereon and every reasonable inference there-*16freon, raises only a conjecture or speculation as to the determinative issue. G.S. 1-183.

2!. Death § 3—

In an action for wrongful death, plaintiff has toe burden of showing negligence on the part of defendant and that such negligence was the ¡proximate canse oí the fatal injury.

3. Automobiles § 36: Negligence § 17—

Negligence is not presumed from, toe mere fact of injury, but plaintiff has toe burden of proving negligence and proximate cause, and when he 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.

4. Negligence § 19a: Trial § 19—

Whether there is enough evidence to support a material issue is a matter of law.

5. Automobiles § 41a—

Evidence tending to show merely that a person driving an automobile at a lawful speed along a dry, paved highway, ran off toe highway to his right just beyond a bridge, after a curve, causing toe car to go over am. embankment and overturn, killing two passengers therein, without any evidence of any obstruction or defect in the road, prior swerving of toe car, traffic, or any unusual happening prior to the accident, is held insufficient to be submitted to the jury on toe issue of the negligence of the driver as the proximate cause of the 'accident.

6. Negligence § 3%— Applicability of doctrine of res ipsa loquitur.

While toe doctrine of res ipsa loquitur applies in proper cases when an instrumentality is shown to be under toe control of defendant and ■ ‘ the accident 'is such as does not occur in the ordinary course of things if the .person having control of toe instrumentality uses proper care, the doctrine does not apply when .all the facts ar.e known and testified to, where more than one inference can be drawn from the evidence as to the cause of toe injury, where toe existence of negligence is not toe more reasonable probability o,r toe matter is left in conjecture, where it appears that the accident was due to an act of God or toe tortious act .of a stranger, where toe instrumentality is not under toe exclusive control or management of defendant, or where toe injury results from an 'accident as defined by law.

7. Appeal and Error § 59—

An. opinion of the ¡Supreme Oorurt must be considered within the framework of toe facts of the particular case in which it is rendered.

8. Automobiles §§ 36, 41a—

The doctrine of res ipsa loquitur does not apply to evidence showing merely that an automobile suddenly and for some unexplained reason ran off toe highway and overturned, there being no evidence of excessive *17speed, reekless driving or failure to exercise reasonable control and lookout. Etheridge v. Etheridge, 222 N.C. 616, modified.

Higgins, J., dissenting.

Bobkuct, J., concurs in dissent.

Appeal by plaintiffs from Armstrong, J., at September 1958 Civil Term of GuileoRD (Greensboro Division), being No. 605 .at Fall Term 1958, and brought forward to present No. 595.

Two .civil actions to recover of Jessie L. Dorney, Executrix of Herbert G. Dorney, (1) for personal injuries to plaintiff Hazel M. Dane, and (2) for wrongful death of plaintiff’s testate Herbert S. Lane, allegedly proximately caused by negligence of defendant’s testate Herbert G. Dorney, deceased, by consent consolidated) for trial.

The .allegations bearing upon the negligence of testate of defendant are 'substantially .the Same in both complaints, i.e., that “at about 8:20 P.M. on October 18, 1954,” plaintiff Hazel M. Lane and her 'husband, Herbert S. Lane, testate of plaintiff V. Wilton Lane, were riding as passengers .and guests “in an automobile which was owned and being operated at the time by defendant’s testator, Herbert G. Dorney, en route from Greensboro, North Carolina, to High Point, North Carolina, on the highway between Pomona, North Carolina, and High Point, North Carolina.”

That “while 'operating said automobile, as set out” (above) * ';í ':i “as said automobile approached the curve in saidi highway which is immediately to the northeast of said highway’s bridge over Deep River, defendant’s testator Herbert G. Dorney caused said automobile to run off the paved portion of said highway and over the embankment of said highway at said .point and to crash below,” as a result of which plaintiff Hazel M. Lane suffered injury, and testator Herbert S. Lane was killed.

And that the injuries and damages and death were “caused solely by the carelessness .and negligence of defendant’s testator, Herbert G. Domey, in that, in driving said automobile, as set out * * * defendant’s testator, Herbert G. Dorney, failed to keep a proper lookout for the 'course and condition of said highway .ajad particularly for the curve on ©aid .highway” and failed to keep said automobile under proper control :and on the paved) portion of said highway and caused said automobile to run off the patved portion of said -highway and over said embankment and to crash below.

Defendant answered, denying the allegations of negligence.

The case on appeal .shows that a pre-trial hearing wais had. In the Pre-Trial Order the following appears:

*18“2. It is judicially stipulated by alll of the parties to this action as follows:

“(c) That at about 8:20 P.M., on October 18, 1954, the late Herbert G. Domey was operating a 1950 Tudor Oldsmobile ’54 N.C. License 70-474; .owned by him, along N. O. Highway No. 68 between Pomona and High Point, Guilford County, North Carolina, at a point about six miles northeast of High Point and that the late Herbert S. Lane was riding in the front seat of the car; Hazel M. Lane and Jessie L. Dorney were riding in the back seat.”

And upon the trial plaintiff offered evidence.

Jessie L. Dorney, defendant, as Executrix in both oases, was called as an adverse witness by the plaintiffs, and testified substantially as follows:

“After we got out of Greensboro in the county, I do not know how many miles per hour Mr. Dorney was driving the car. From the time we left my home as we went down the road, there was no change in the position of any of the parties in tire car * * * . From the time we left until the wreck, Mrs. Lane and/ I were engaged in conversation with each other in the back seat. I was not noticing particularly what was going on as far as the driving was concerned. Mr. Dorney was 62 years old at that time, nearly 63. He was perfectly well and had no impairment in his health of any kind at 'that time.

“I do not know whether the car ran off the road and over an embankment at the point of the Deep River Bridge about 6 miles northeast of High Point. I know now that this ear was involved in a wreck on the way to High Point. I was not conscious of anything unusual happening on the road before this car was involved in this crash. I do not know whether there was any skidding of the ear before the crash. I was conscious of none. I was not conscious of any swerving of the car while it was on the paved portion of the road. I was not conscious of the oar hitting anything in the road or anything of that sort. * * Mr. Dorney and Mr. Lane were killed in the wreck. I do not know the condition of the road at or’ near the point of the wi'eck that night with reference to it being wet or dry. I have no recollection of the surface itself. I am not aware of 'any unusual traffic conditions at that particular point that night. On that road, I was not aware of any unusual traffic conditions. I was not 'conscious of any unusual happening on the road as long as the car was on the road itself. * * * I do not know whether the car struck the concrete steps -that led down into the river bottom and I do not know whether it struck the ap-*19pro-aeh bo the bridge or just what it -struck. * * * I was bold that the oar was completely demolished * * * .”

On cross-examination Mrs. Dorney testified as follows:

“Mrs. Lane and I were engaged in conversation, as my husband was driving the automobile along the highway. I presume that -the lights on the car were burning. I don’t know the mileage from my house to the -point of (the accident, but it was quite some distance. As the car was being driven along the highway by my husband there wajs nothing unusual about the way he was driving that attracted my -attention. I did not realize that there was an -accident -or that there was going to be an accident until the moment of -a great impact.”

And on redirect examination, she testified as follows:

“ * * Just before the accident occurred, I was engaged in conversation with M'rs. Laine. I was not paying any attention to -the road or to Mr. Dorney, or to Mr. Lane.”

C. T. Pierce testified substantially as follows:

“I am a -sergeant with the North Carolina State Highway Patrol * * In that capacity, I investigated -am automobile crash on the night of October 18, 1954. The investigation was at approximately 8:45 P. M., on the “Red Road” running from Pomona- to High Point * * * . The accident occurred -six miles north -of High Point on this Pomon-a R-oad. When I arrived at the -scene -o-f the -accident about 8:55 P. M., I found -a 1950 model Old'smobile, tw-o-dioor, overturned on the south end of the bridge over Deep River. The license number -of the oar was NC 70-474, 1954 license. * * * I examined the -condition of the road around the point -of this accident. Approaching tbits bridge from Greensboro, traveling in the direction of High Point, there is a 1-ong, rather sweeping curve to the left -and -at the bottom— this is down grade— and at the bottom of this -hill i-s -a bridge over Deep River with cement abutments on each side o-f the bridge. The r-o-ad at the point of the bridge -is approximately 18 feet wide. The paved portion of the ro-ad is -about the -same, 18 feet wide, standard road. It -is 18-foot standard leading up to the point -and in both directions fro-m the bridge. That condition existed -on the night -of October 18, 1954. The weather -condition -on that night was cloudy. The r-oad was -dry. In my investigation, I found no obstruction in tire road of -any kind * * * I found no defects o-f -any kind in the ro-ad. This highway was and is a part of the North Carolina Public Highway System. The highway composition was tar 'and gravel * * I examined the -condition of the -oar, but I do not recall the details. In my examination of the ro>ad at the point, I did not find any -skid marks of any kind on the *20pavement. I did not find anything of any nature about the condition of the highway 'at that point that wais unusual in 'any respect.”

On cross-examination, the witness added substantially the following:

“The road runs northeast towards Greensboro and southwest towards High Point * * ':i At the point where the road crosses the bridge, the bridge itself is straight. As I recall, the roadi was straight to the southwest and northeast of tire bridge for some distance. * * * With reference to defendant’s exhibit 1, marked for identification, my recollection now is that the top of the bridge abutment was actually below the surface of the pavement. Unlike most bridges, there was no rail or anything along the sides. I found the 1950 Olds overturned at the south end of the 'bridge. I don’t recall whether it was partly in the river, but it was down below the surface of tire roadi, some distance beyond the bridge. That was at the end of 'the bridge toward High Pioint. The .bridge ran north 'and south with the south end toward High Point and the north end toward Greensboro. The vehicle was off the west side of the bridge near the south end of the bridge.

“When I -arrived there * * my recollection is that * * * the car ■was upside down resting on the top * * * .”

And on redirect examination the witness testified as follows:

“The ishioulders of -this road were roughly 3 feet wide on each side of the pavement. Just before yiou get to the bridge coming from Greensboro, I observed 'at a point 22 feet north of the little abutment enclosing the steps that went down the hill at the bridge * * * a tire mark leading over to the steps. By a tire mark, I mean an indenture in the shoulder of the road. The nature of the tire mark was an .indenture in the shoulder of tire road leading off from the edge of the pavement over to the steps. I don’t recall whether it was exactly straight or not.”

Plaintiffs offered in evidence photograph marked for identification “Defendant’s Exhibit 1.”

Plaintiffs offered evidence on the issue of damages, and then rested their oases. Defendant’s motion for judgment as of nonsuit in both cases consolidated for trial was allowed. Plaintiffs except thereto and from judgment in accordance therewith appeal to Supreme Court, and assign error.

McLendon, Brim, Holderness & Brooks for plaintiffs, appellants.

Jordan, Wright & Henson, Wharton & Wharton for defendant, appellee.

Winbokne, C. J.

This is the question involved on this appeal, as *21stated in brief of plaintiffs: Did -the Superior Court commit error in granting defendants’ motion for judgment of nonsuit at the close of flhe plaintiffs’ evidence?

Taking the evidence offered by plaintiffs, as shown in the record of case on appeal, in the light moist favorable to the plaintiffs, giving to them the benefit of every reasonable intendment upon the evidencie and every reasonable -inference to be drawn therefrom, as is done in considering demurrer to the evidence, G.S. 1-183, a negative answer to this question is deemed proper.

In -an -action for recovery of damages for personal injury or for wrongful death from action-able negligence -of defendant, plaintiffs must show: (1) That there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant -owed the plaintiffs under the circumstances -in which they were plateed; and (2) that such negligent 'breach, of duty was the proximate cause of the injury, >a -cause -that produced the result in continuous sequence, and without which it would not ih©tve 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. Whitt v. Rand, 187 N.C. 805, 123 S.E. 84; Mintz v. Murphy, 235 N.C. 304, 69 S.E. 2d 849; Wall v. Trogdon, 249 N.C. 747, and cases cited.

Negligence is -not presumed from the mere fact of injuiy or that testator was killed. Mills v. Moore, 219 N.C. 25, 12 S.E. 2d 661, and numerous latea’ decisions in approval.

Thea-e must be legal evidence of every material fact -necessary to support -a verdict, and .the verdict “.must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a -mere giuess, or on possibilities.” 23 C.J. 51. Wall v. Trogdon, supra. If the evidence fails to establish -either one of the essential elements of -actionable negligence, the judgment of nonsuit must be affirmed. Whether there is enough evidence to support -a material issue is a matter of law. Mills v. Moore, supra.

Moreover, in Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670, in opinion by Ervin, J., it is appropriately stated: “In an -action for death by wrongful -act based on negligence, .the burden rests on the plaintiff to produce evidence, either -direct -or circumstantial, sufficient to establish the two essential elements of -actionable negligence, (deleting citations), namely: (1) That the defendant was guilty of -a negligent aot or omission; and (2) .that such act or omission prox-i-rnately caused the dlealih of the decedent * * * To carry this burden by circumstantial evidence, the .plaintiff must present facts which reasonably warrant the inference that the decedent was killed by the *22actionable negligence of the defendant * An inference of negligence cannot rest on conjecture or surmise * This is necessarily so because an inference is a permissible conclusion drawn by reason from a premise established by proofs * * *

Indeed, an accepted aard sound rule of law land logic is that 'the facts from which an inference of negligence may be drawn must be proved, and cannot themselves be inferred or presumed from other facts which merely raise a conjecture or possibility of their existence. See 20 Am. Jur. Evidence, Sec. 165,— recognized with approval in ithe Sowers case.

And in Parker v. Wilson, 247 N.C. 47, 100 S.E. 2d 258, opinion by Parker, J., this principle is applied in this manner: “When in a case like this the plaintiff must rely on the physical facts, and other evidence, which is circumstantial in nature,'to show that Donald Wilson wias driving the automobile at ¡tire time of the wreck, he must establish attendant facts and circumstances which reasonably warrant this inference (citing oases). Such inference cannot rest on conjecture or surmise * * ‘The inferences contemplated by this 'rule are logical inferences reasonably sustained by the evidence, when considered in the light most favorable to the plaintiff’ * * * ‘A cause of action must be something more than a guess’ * * * A resort to a choice of possibilities is guesswork, not decision * * * To carry his case to the jury the plaintiff must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts.”

Testing plaintiffs’ evidence by these principles in determining its sufficiency to show negligence of testate of defendant in the operation of the 'automobile, the question is left in the realm of conjecture and surmise. Just what happened to bring about the “great impact,” as characterized by Mrs. Dorney, is pure guesswork. And the rule of res ipsa loquitur upon which plaintiffs rely is inapplicable.

Under decisions of this Court in actions biased on actionable negligence, and there is no definite evidence as to what caused the accident and no evidence of negligence except the bare fact that the accident occurred, and plaintiff therefore seeks to maintain her action by 'applying tire rule res ipsa loquitur, the rule is as abated in Scott v. London Docks Co., 159 Eng. Rep. 665, that “There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or Iris servants, and the accident is such as in tire ordinary course of things does not happen if those who have the management use proper care, or affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose *23from want of care.” See among others Saunders v. R.R., 185 N.C. 289, 117 S.E. 4; Lea v. Light Co., 246 N.C. 287, 98 S.E. 2d 9.

But decision's of this Count uniformly hold that the principle of res ipsa loquitur “doeis not (apply (1) when all 'the facts causing the accident are known and testified to by the witnesses at the trial * * * ; (2) where more than one 'inference can be drawn from the evidence as to the cause of the injury * * * ; (3) Where the existence of negligent default is not the more reasonable probability, and where the proof of the 'Occurrence, without more, leaves the matter resting only in conjecture * * *; (4) where if appears that the 'accident was due to a cause beyond/ -the control of the defendant, such .as the (act of God or the wrongful or tortious act of ia stranger * * *; (5) when the instrumentality causing /the injury ‘is not under the exclusive control or management of defendant * * *; (6) where the injury results from accident as defined and contemplated by law.” Springs v. Doll, 197 N.C. 240, 148 S.E. 251.

Nevertheless plaintiffs, appellants, relying principally upon Etheridge v. Etheridge, 222 N.C. 616, 24 S.E. 2d 477, contend .that the doctrine of res ips'a loquitur is recognized in North Carolina >as lap-plicaible to unexplained -automobile accidents.

In this connection it must be noted, however, that “Every opinion, to be correctly understood, ought to he considered with ia view to the -case in which it was delivered,”— so declared Chief Justice Marshall, writing in 1807 in U. S. v. Burr, 4 Cranch, 469, at 481. And this rule Iras been expressed in many opinions before this Court. See oases listed in Strong’s N. C. Index, Vol. 1, Appeal iaod Error, Sec. 59, including Carpenter v. Carpenter, 244 N.C. 286, 93 S.E. 2d 617 (1956), where in opinion by Bobbitt, after .speaking of statements in our decision's “which, when considered apart from the factual situations under -consideration, tend to support plaintiff’s contention,” '.added “But we are mindful of the apt expression of Barnhill, J. (later C.J.): ‘The law discussed (in -any opinion is set within the framework of the facts of that particular case * * * .’ ” Light Co. v. Moss, 220 N.C. 200, 17 S.E. 2d 10.

With this rule in mind, it is seen that the factual situation in the Etheñdge case, as stated in the opinion of the Court, is this: “On Sunday 27 April, 1941, plaintiff and defendant, brothers, were returning to Whitakers, N. C., from Bellamy’s Mill in an -automobile owned and 'operated by defendant. Defendant was -driving about 35 miles per hour on a 'dirt road. As they 'approached an intersection or fork -in the road defendant .passed another vehicle going about 20 miles per hour. 'He -swerved around that -car and mtn into that intersection *24and lost control of the oar rand ran in the ditch (on the right) 'and the oar turned over. He crossed the intersection 'and was making the bend to the left and the speed he eouldnit make it .and hit the bank on the right side. After you crossed the intersection the road curves to the left.’ The oar ran into the ditc'h and turned over. Defendant passed the car before reaching the intersection and the oar turned over 100 to 150 feet beyond the intersection. It was dusty at the time. Defendant offered evidence tending to show that as he crossed the intersection his oar hit a ‘kinder’ -bump, went to the right and stayed on the right-hand side until tire accident occurred. He tried to turn back to the middle of tire read but could not. He does not know why. He applied his brakes ‘but they did not seem to take hold.’ ”

And it will be noted in the opinion, after first discussing the related facts, it is said: “This evidence, except as one ¡of several circumstances, does not tend to Show negligence. Is there, then, any sufficient evidence of want of due care, requiring .the submission of the cause to a jury? The statute prohibits the operation of a motor vehicle without due caution and circumspection or at a speed or in a maimer so as to endanger or be likely to endanger any person or property, Sec. 102, Chap. 407, Public Laws 1937, or .at a speed greater than is reasonable and prudent under the conditions .tiren existing * * * Plaintiff’s complaint, liberally construed, ¡alleges a violation of these provisions of our Motor Vehicle Laws. We are constrained to hold that he -has offered evidence tending to support ¡the .allegation.”

The reason for the decision is merely that this evidence of the violation of the statute prohibiting reckless driving was sufficient to require submission of the .case to a jury. (The opinion might have stopped here.) Appellee contends, and rightly so, that this limitation of the effect of the Etheridge case is recognized in Riggs v. Motor Lines, 233 N.C. 160, 63 S.E. 2d 197, and Stegall v. Sledge, 247 N.C. 718, 102 S.E. 2d 115, in which cases the Etheridge ca'se is cited for ¡the proposition ¡that the evidence tended to show excessive speed or reckless driving.

Moreover, appellees contend, and we hold properly so, that much of what was said in Etheridge case was obiter dicta, ¡and that what the case actually holds is: “When a motorist drives an ¡automobile around a -curve at ¡such a speed ¡that he cannot malee the curve and runs into a ditch bank, causing his car to overturn, all of which the evidence offered tends to .show, a jury may find that he is guilty of actionable negligence in the violation of G.S. 20-140”; and that “the case also stands for the proposition that under these circumstances the jury may decline to believe defendant’s explanation that lie lost control be*25cause of striking a bump in tibe road ¡or was uiaabfe to retain control because of sudden failure of bis brakes.” Thus when .the Etheridge case is closely scrutinized it is found that it does not hold that the doctrine of res ipsa loquitur has been adopted in this State in automobile .accident oases. Manifestly it does not support the proposition that a ease is made for the jury by merely showing that an automobile apparently suddenly and for some unexplained reason leaves the highway and 'Overturns in a creek bed,— there being no evidence of excessive speed, reckless driving, or failure to exercise reasonable control and lookout.

Indeed the opinion in the EtheHdge case quoting from Springs v. Doll, supra, states that it, the doctrine of res ipsa loquitur, does not apply * * * (2) where more than one inference can be drawn from the evidence -as to the .cause of the injury; (3) where the existence of negligent default is not the most reasonable probability, and where the proof of the occurrence, without more, leaves the matter resting only in conjecture * * * (6) where ¡the injury results from accident as defined and contemplated by 'law. In this aspect .compare Lea v. Light Co., supra.

It may be also noted and appellee Calls attention to the fact that in the North Carolina cases cited by appellant there is testimony in the -record comprising evidence of facts and .circumstances, other than tire mere occurrence of the accident from which ajn inference of negligence might be drawn. And it would seem that this is true of oases cited from other jurisdictions.

Further it is noted that in the case in hand the evidence discloses nothing except that there was an unexplained .and mysterious upset of ■the car being driven by testator of defendant. He died in the accident. Thus the record leaves the case wholly in the area of speculation and conj ecture.

Hence, for reasons stated, the judgment as of nonsuit is


Higgins, J.,

dissenting. From the evidence, which is fully and fairly stated in the opinion, I draw inferences different from those expressed by the Chief Justice.

The evidence at the trial disclosed that Mr. Domey, the driver, and Mr. Lane were in the front seat of the Oldsmofoile, engaged in conversation. Their wives were in tire back seat, 'similarly occupied. The hard surface highway over which they were traveling was 18 feet wide, dry, and free of obstruction. If nothing appeared -in this case except the physical evidence of the wreck, I should be inclined *26to go along with the opinion on the ground that the cause of the wreck might 'have resulted from mechanical defects, a sudden seizure of the driver, or the vehicle might have been forced off the road by the negligence of some other traveler on the highway. But Mrs. Domey’s evidence tends to remove these contingencies.

The evidence is plenary that Mr. Dorney, driving downhill on an unobstructed highway, failed to make a curve to the left, ran off the road to the right, wrecked ithe vehicle, with the fatal result. The tire miajrks for 22 feet on the shoulder of the roadi, the imprint on the concrete abutment 'enclosing the steps, the position of the vehicle resting on 'its top on the other side of the river, radicate the driver lost control. The evidence permits the inference that the loss of control did not result from defects in 'the vehicle, incapacity of the driver, or intervening negligence of another traveler. According to Mrs. Dorney, “Pie (Mr. Dorney) was perfectly well and had no impairment in his health- — I was not conscious of 'anything unusual happening before this car was involved in this wreck- — I was not conscious of any swerve of the ear while it was on the paved portion of tire road.”

In the absence of any plausible explanation as to what caused .the wreck, we are left with the permissible inference that it resulted from the driver’s failure to use due care to beep his aiutomoibile under proper control, to keep a proper -lookout for anld observe the course and condition of -the highway. Failure to use due care is negligence.

“In the absence of obstructions, defeats -in the road o-r car or other supervening cause, the wreck of a car under the .circumstances disclosed (overturned on curve) readily warrants 'an inference of negligence in operation.” Etheridge v. Etheridge, 222 N.C. 616, 24 S.E. 2d 477; Tatem v. Tatem, 245 N.C. 587, 96 S.E. 2d 725; Hensley v. Harris, 242 N.C. 599, 89 S.E. 2d 155; Boone v. Matheny, 224 N.C. 250, 29 S.E. 2d 687.

The evidence, in my opinion, was sufficient to require its submission to the jury. I vote to reverse.

Bobbitt, J., concurs in dissent.