
108 S.E.2d 55 (1959)
250 N.C. 15
Hazel M. LANE
v.
Jessie L. DORNEY, Executrix of the Estate of Herbert G. Dorney, deceased.
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.
No. 595.
Supreme Court of North Carolina.
April 8, 1959.
*59 McLendon, Brim, Holderness & Brooks, Greensboro, for plaintiffs-appellants.
Jordan, Wright & Henson, Wharton & Wharton, Greensboro, for defendant-appellee.
WINBORNE, Chief Justice.
This is the question involved on this appeal, as stated in brief of plaintiffs: Did the Superior Court commit error in granting defendants' motion for judgment of nonsuit at the close of the plaintiffs' evidence?
Taking the evidence offered by plaintiffs, as shown in the record of case on appeal, in the light most favorable to the plaintiffs, giving to them the benefit of every reasonable intendment upon the evidence 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 actionable 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 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 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. Town of Murphy, 235 N.C. 304, 69 S.E.2d 849; Wall v. Trogdon, N.C., 107 S.E.2d 757, and cases cited.
Negligence is not presumed from the mere fact of injury or that testator was killed. Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661, and numerous later decisions in approval.
There 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 guess, or on possibilities." 23 C.J. 51; 32 C.J.S. Evidence § 1042. 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, 671, 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 act or omission; and (2) that such act or omission proximately caused the death 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 actionable negligence of the defendant * * * An inference of Negligence can not rest on conjecture or surmise * * * This is necessarily so because an inference is a permissible conclusion drawn by reason from a premise established by proof. * * *."
Indeed, an accepted and sound rule of law and 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 the Sowers case.
*60 And in Parker v. Wilson, 247 N.C. 47, 100 S.E.2d 258, 262, 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 was driving the automobile at the time of the wreck, he must establish attendant facts and circumstances which reasonably warrant such inference (citing cases). 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 based 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 the rule res ipsa loquitur, the rule is as stated 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 his servants, and the accident is such as in the 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 from want of care." See among others Saunders v. Norfolk & W. R. Co., 185 N.C. 289, 117 S.E. 4, 29 A.L.R. 1258; Lea v. Carolina Power and Light Co., 246 N.C. 287, 98 S.E. 2d 9.
But decisions of this Court uniformly hold that the principle of res ipsa loquitur "does 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 it 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 a stranger * * *; (5) when the instrumentality causing the injury is not under the exclusive control or management of the 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, 252.
Nevertheless plaintiffs, appellants, relying principally upon Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477, contend that the doctrine of res ipsa loquitur is recognized in North Carolina as applicable to unexplained automobile accidents.
In this connection it must be noted, however, that "Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered," so declared Chief Justice Marshall, writing in 1807 in United States v. Burr, 4 Cranch 470, at page 482. And this rule has been expressed in many opinions before this Court. See cases listed in Strong's N.C.Index, Vol. 1, Appeal and Error, Sec. 59, including Carpenter v. Carpenter, 1956, 244 N.C. 286, 93 S.E.2d 617, 624, where in *61 opinion by Bobbitt, J., after speaking of statements in our decisions "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. (now C. J.): `The law discussed in any opinion is set within the framework of the facts of that particular case * * *.'" Nantahala Power & 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 Etheridge case, [222 N.C. 616, 24 S.E.2d 478] 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 ran into that intersection and lost control of the car and ran in the ditch (on the right) and the car turned over. He crossed the intersection and was making the bend to the left and the speed he couldn't make it and hit the bank on the right side. After you crossed the intersection the road curves to the left.' The car ran into the drain ditch and turned over. * * * Defendant passed the car before reaching the intersection and the car 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 car hit a `kinder' bump, went to the right and stayed on the right-hand side until the accident occurred. He tried to turn back to the middle of the road 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 manner so as to endanger or be likely to endanger, any person or property, section 102, Chap. 407, Public Laws 1937, or at a speed greater than is reasonable and prudent under the conditions then existing. * * * Plaintiff's complaint, liberally construed, alleges a violation of these provisions of our Motor Vehicle Law. 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. Akers 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 case 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 make 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 he lost control because of striking a bump in the road or was unable to retain control because of sudden failure of his 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 *62 accident cases. Manifestly it does not support the proposition that a case 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 Etheridge 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. Carolina Power and 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 the mere occurrence of the accident from which an inference of negligence might be drawn. And it would seem that this is true of cases 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 conjecture.
Hence, for reasons stated, the judgment as of nonsuit is
Affirmed.
HIGGINS, Justice (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. Dorney, the driver, and Mr. Lane were in the front seat of the Oldsmobile, engaged in conversation. Their wives were in the 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 to 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. Dorney'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 the vehicle, with the fatal result. The tire marks for 22 feet on the shoulder of the road, 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, indicate 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, "He (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 car while it was on the paved portion of the 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 keep his automobile under proper control, to keep a proper lookout for and observe the course and condition of the highway. Failure to use due care is negligence.
*63 "In the absence of obstructions, defect in the road or 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, 480; 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.
