No. 311.

97 S.E.2d 411 (1957)

246 N.C. 108

Frederick Napoleon LANE, Administrator of the Estate of Sylvester Moore, Deceased, v. Elizabeth BRYAN.

Supreme Court of North Carolina.

April 17, 1957.

Attorney(s) appearing for the Case

Wallace & Wallace, by F. E. Wallace, Jr., Kinston, for plaintiff, appellant.

Whitaker & Jeffress, Kinston, for defendant, appellee.

PARKER, Justice.

Plaintiff's alleged cause of action is for death by wrongful act based on negligence. The burden of proof rests upon plaintiff to produce evidence sufficient to establish the two essential elements of his alleged case: one, that the defendant was guilty of a negligent act or omission, and two, that such act or omission proximately caused the death of his intestate. State ex rel. Garland v. Gatewood, 241 N.C. 606, 86 S.E.2d 195; Sowers v. Marley, 235 N.C. 607, 70 S.E.2d 670.

The only negligence of legal importance is negligence which proximately causes or contributes to the death or injury under judicial investigation. McNair v. Richardson, 244 N.C. 65, 92 S.E.2d 459; Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25; Byrd v. Southern Express Co., 139 N.C. 273, 51 S.E. 851.

Evidence of actionable negligence need not be direct and positive. Circumstantial evidence is sufficient, either alone or in combination with direct evidence. Whitson v. Frances, 240 N.C. 733, 83 S.E.2d 879; Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711. A basic requirement of circumstantial evidence is reasonable inference from established facts. Inference may not be based on inference. Every inference must stand upon some clear and direct evidence, and not upon some other inference or presumption. Whitson v. Frances, supra; Sowers v. Marley, supra.

In Sowers v. Marley, supra [235 N.C. 607, 70 S.E.2d 672], this Court said, speaking of circumstantial evidence in a death case : "An inference of Negligence can not rest on conjecture or surmise. [Citing authorities.] This is necessarily so because an inference is a permissible conclusion drawn by reason from a premise established by proof."

This Court said in Brown v. Kinsey, 81 N.C. 245: "The rule is well settled that if there be no evidence, or if the evidence be so slight as not reasonably to warrant the inference of the fact in issue or furnish more than materials for a mere conjecture, the Court will not leave the issue to be passed on by the jury." This has been quoted with approval in Byrd v. Southern Express Co., supra, and in Poovey v. International Sugar Feed Number Two Co., 191 N.C. 722, 133 S.E. 12, 14 where Brogden, J., the writer of the opinion, adds in apt and accurate words: "This rule is both just and sound. Any other interpretation of the law would unloose a jury to wander aimlessly in the fields of speculation." See Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227; Whitson v. Frances, supra. "Cases cannot be submitted to a jury on speculations guesses or conjectures." Hopkins v. Comer 240 N.C. 143, 81 S.E.2d 368, 374.

Byrd v. Southern Express Co., supra, was an action to recover damages for the death of plaintiff's intestate alleged to have been caused by defendant's negligence in failing to forward a package of medicine for the intestate, who was ill with typhoid fever. A motion of nonsuit was sustained as the evidence did not tend to show that the failure to receive the medicine caused the intestate's death. The Court said in respect to the evidence, "there is no room here for anything more certain than rank conjecture." [139 N.C. 273, 51 S.E. 852.]

In Currie v. General Accident Fire & Life Assur. Corp., 241 Wis. 564, 6 N.W.2d 697, 698, the Court held in view of deceased's bad heart condition, there was not sufficient evidence produced to remove the cause of his death, whether from heart disease or from accident, from the field of speculation and conjecture. The Court said: "A jury could do no more than guess at the cause of death, and this being so, there is no basis for recovery."

The doctrine of res ipsa loquitur is not applicable to the facts here. Pemberton v. Lewis, 235 N.C. 188, 69 S.E.2d 512; Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477; Springs v. Doll, 197 N.C. 240, 148 S.E. 251.

The evidence presents a story filled with mystery. The sole evidence connecting defendant with the case comes from her own lips.

About dusk dark in a drizzling rain on 12 December 1953, plaintiff's intestate was seen walking normally on his right hand side of a paved road headed west, and about 300 to 400 yards from where he was killed. He was walking on the northern part of the road. There is no evidence he was drinking. Shortly thereafter, his body was seen lying prostrate on the southern side of the road by defendant and L. L. Barrow. Had he been struck or run over by a car? The evidence gives no answer. We are left to conjecture. The only evidence that he was not dead, when first seen by defendant and Barrow, is their evidence they saw a movement of the body.

After defendant's car passed over the body, she drove a mile to Mewborn's Crossroads, telephoned the officers, and returned to the scene. Barrow passed by the body, drove a mile and a half to his wife's aunt's home, put his wife out, and without cutting off his engine returned to the scene. Upon his return defendant was there. Did Barrow pass the body, and see him "kind of raised his head up and it looked like he had it propped on his hand," before or after defendant's car passed over the body? We can only guess, because the evidence affords no logical inference.

When Barrow returned the body was on the northern side of the road. How did it get from the southern to the northern side of the road? When Barrow stopped, he saw a car coming up, and this car ran across the body. Did the defendant's car kill plaintiff's intestate? Was he killed by the car which ran over him, when Barrow returned? Was he killed by being run over by a car between those times? How many times was he struck and run over? The wheels of defendant's car did not pass over the body. Could defendant's car in passing over the body fracture both legs and crush the chest?

It would be absurd to say the deceased was killed twice. State v. Scates, 50 N.C. 420. Plaintiff has the burden of showing that the alleged negligent act or omission of the defendant proximately caused the death of his intestate. Considering plaintiff's evidence with the liberality we are required to do on a motion for nonsuit, we are of opinion that he has failed to produce any evidence from which a reasonable inference can be drawn as to the proximate cause of his intestate's death. The evidence leaves it all in the realm of mere conjecture, surmise, and speculation, and one surmise may be as good as another. Nobody knows. A cause of action must be something more than a guess.

The judgment of nonsuit below is



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