
74 S.E.2d 24 (1953)
236 N.C. 632
GODWIN
v.
NIXON et al.
No. 238.
Supreme Court of North Carolina.
January 6, 1953.
*30 Plaintiff, Mrs. M. E. Godwin, appeals to the Supreme Court and assigns error.
Leon G. Stevens and E. Craig Jones, Jr., Smithfield, for plaintiff appellant.
Wellons, Martin & Wellons, Smithfield, for Prater.
Hooks, Mitchiner & Spence, Smithfield, for Nixon Brothers.
WINBORNE, Justice.
This appeal challenges the ruling of the trial court in sustaining the motions of defendants for judgment as of nonsuit in so far as the appealing plaintiff is concerned. This raises the question as to whether or not the evidence offered upon the trial below, as shown in the case on appeal, taken in the light most favorable to plaintiff, is sufficient to make out a case of actionable negligence against either the defendants, Nixon Brothers, or the defendant Prater. Considering the evidence in such light, this Court agrees with the ruling and judgment of the trial court in so far as the defendants Nixon Brothers are concerned, but holds that there is error in the ruling and judgment as it relates to defendant Prater.
In an action for recovery of damages for injury resulting from actionable negligence of defendant, plaintiff 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 plaintiff under the circumstances in which they were placed. 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 have occurred, and one from which a man of ordinary prudence could have foreseen that such result was probable under the facts as they existed. Ramsbottom v. Atlantic Coast Line R. Co., 138 N.C. 38, 50 S.E. 448; Whitt v. Rand, 187 N.C. 805, 123 S.E. 84. See Mintz v. Town of Murphy, 235 N.C. 304, 69 S.E.2d 849; and Morris v. Jenrette Transport Co., 235 N.C. 568, 70 S.E.2d 845, where the authorities are assembled.
If the evidence fails to establish either one of the essential elements of actionable negligence, judgment of nonsuit is proper. Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377 and Mintz v. Town of Murphy, supra, and cases there cited.
And the principle prevails in this State that what is negligence is a question of law, and when the facts are admitted or established, the court must say whether it does or does not exist. "This rule extends and applies not only to the question of negligent breach of duty, but also to the feature of proximate cause", Hoke, J., in Hicks v. Naomi Falls Mfg. Co., 138 N.C. 319, 50 S.E. 703, 705; Russell v. Carolina Central R. Co., 118 N.C. 1098, 24 S.E. 512; Lineberry v. North Carolina R. Co., 187 N.C. 786, 123 S.E. 1; Mintz v. Town of Murphy, supra, and cases cited.
In Lineberry v. North Carolina R. Co., supra, in opinion by Clarkson, J., this Court said: "It is well settled that, where the facts are all admitted, and only one inference may be drawn from them, the court will declare whether an act was the proximate cause of the injury or not." [187 N.C. 786, 123 S.E. 4] See also Nichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320; Mintz v. Town of Murphy, supra, and cases cited.
Furthermore, it is proper in negligence cases to sustain a demurrer to the evidence and enter judgment as of nonsuit under the provisions of G.S. § 1-183 when, among other grounds, "it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person. * * *" Stacy, C. J., in Smith v. Sink, 211 N.C. 725, 192 S.E. 108, 109, and cases cited in respect to such principle. See also Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; *31 Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808; Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Luttrell v. Carolina Mineral Co., 220 N.C. 782, 18 S.E.2d 412; Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197; Mintz v. Town of Murphy, supra.
In Smith v. Sink, supra, it is also said: "We had occasion to examine anew this doctrine of insulating the conduct of one, even when it amounts to passive negligence, by the intervention of the active negligence of an independent agency or third party, as applied to variant fact situations, in the recent cases of Beach v. Patton [208 N.C. 134, 179 S.E. 446]" and others cited. Then the opinion continues: "These decisions * * * are in full support and approval of Mr. Wharton's statement in his valuable work on Negligence (section 134): `Supposing that if it had not been for the intervention of a responsible third party the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject-matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured'." Then there follows, to like effect, a quotation from Milwaukee & St. P. R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256. See also Butner v. Spease, supra; Riggs v. Akers Motor Lines, supra; Mintz v. Town of Murphy, supra; Clark v. Lambreth, 235 N.C. 578, 70 S.E.2d 828.
In the light of these principles, applied to the case in hand, if it be conceded that the defendants Nixon Brothers failed in the performance of statutory obligations imposed upon them in any respect alleged in the complaint, the evidence fails to show that such failure was a proximate cause of the injury to plaintiff. On the other hand, it is manifest from the evidence that the injury of which plaintiff complains was "independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person." In so far as Nixon Brothers are concerned, there would have been no injury to plaintiff but for the intervening wrongful act, neglect or default of the driver of the automobile in which she was riding, in failing either to keep a proper lookout for hazards of the road, such as disabled vehicles, or, in the exercise of due care, to keep his automobile under such control as to be able to stop within the range of his lights. In this respect the case comes within the principle applied in Weston v. Southern R. Co., 194 N.C. 210, 139 S.E. 237, and numerous other cases cited in Morris v. Jenrette Transport Co., supra. This exculpates Nixon Brothers. Powers v. S. Sternberg & Co., supra.
Now as to defendant Prater: The evidence shown in the record appears to be sufficient to take the case to the jury on an issue of actionable negligence. Therefore, since there must be a retrial between plaintiff and defendant Prater, and the evidence then may not be the same as it now is, the Court declines to pass upon the question as to whether or not plaintiff and Prater were engaged in a joint enterprise at the time of the collision in question. This subject has been recently treated in James v. Atlantic & East Carolina R. Co., 233 N.C. 591, 65 S.E.2d 214.
Hence the judgment below:
As to defendants Nixon Brothers is affirmed.
As to defendant Prater is reversed.
PARKER, J., took no part in the consideration or decision of this case.
