(Filed 8 May, 1929.)
Negligence A d — In this case held: injury from act could not be foreseen and nonsuit was proper.
Evidence tending to show that the defendant while endeavoring to get his family automobile from the garage on ground covered with ice and snow, had planks placed under the wheels of the machine which were thrown, by the spinning of the wheels, against the plaintiff, his wife, as she stood watching him about fifteen feet from the rear of the car, causing her serious injury: Held, injury from the act could not have been foreseen by the defendant as an ordinarily prudent man, but would have required omniscience, and the defendant is not liable in damages, and a judgment as of nonsuit should have been granted on his motion.
CIVIL ACTION, before Clement, J., at February Term, 1929, of GUILFORD.
Shuping Hampton for plaintiff.
Brooks, Parker, Smith Wharton for defendant.
CLARKSON, J., dissenting.
Plaintiff and defendant are husband and wife, and were at the time of the injury complained of and are now living together in the city of Greensboro.
The evidence tended to show that the defendant owned a Chrysler automobile for the use of himself and family, and that said automobile was placed in a garage at night at the home of plaintiff and defendant. On the morning of 10 January, 1927, a heavy snow was upon the ground. Plaintiff went to the garage and attempted to get the automobile out to the street in order to take the children to school. She was unable to do so, and thereupon the defendant got into the car and attempted to get it out to the street.
Plaintiff's narrative of the occurrence is as follows: "The snow was deep. He tried to back it out and couldn't back it, and he kept running the motor until the car just kept starting and slipping until it turned around, and then he tried to pull it out and the wheels kept sliding. I was out in the yard seeing how it was going to be done. Our cook was out there and she placed a little plank under one wheel. That seemed to help some. Then he told her to get some long planks and put under the wheels, and when she did the car ran over those two long pieces. . . . And when the wheels ran over those planks, instead of going right on off, they spun to the left and the left rear wheel threw the plank back and struck me on the right leg. . . . The plank that struck my right leg was at least four feet long and about seven or eight inches in width and possibly an inch or three-quarters of an inch thick. . . . The car was on the driveway at the time the boards were placed under it. I was standing, I suppose, from the car, ten or fifteen feet. . . . The motor of the automobile was running, and when it ran off the plank it began spinning, and when it struck the snow it consequently threw the plank. The motor of the car was running, it seemed, with all force from the sound of it. I was standing to the left rear of the car."
The plaintiff sustained painful and permanent injury.
The defendant offered no evidence, and the foregoing evidence of the plaintiff is substantially all of the evidence in the case except the testimony of physicians as to the extent of the injury sustained.
Issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of plaintiff. The verdict awarded damages in the sum of $2,030.00. The defendant duly lodged motions of nonsuit, and also requested the court to give certain instructions to the jury.
From judgment upon the verdict the defendant appealed.
The facts are brief and simple. The ground was covered with a heavy snow, and therefore soft and slick. The defendant was not endeavoring to operate the automobile under dangerous conditions, but merely to get his own automobile out of a garage on his own premises. It was suggested upon the oral argument that the defendant should have placed chains upon the automobile before attempting to get it out of the garage, or to have given notice to his wife, the plaintiff, that the wheels were likely to spin. It was also suggested that the defendant was racing the motor. It does not appear that racing the motor caused the wheels to spin. Ostensibly the spinning resulted from contact with a soft, slick surface. These suggestions all lie in the field of speculation. Under the circumstances disclosed by the record the liability of defendant depended upon whether, by the exercise of ordinary care and prudence, he could have reasonably foreseen that some injury would result from attempting to get the automobile out of the garage. The principle of law is thus expressed in Fore v. Geary, 191 N.C. 90, 131 S.E. 387: "No man, by the exercise of reasonable care, however high and rigid the standard of such care, upon the facts in any particular case, can foresee or forestall the inevitable accidents, and contingencies which happen and occur daily, some bringing sorrow and loss, and some bringing joy and profit, all however contributing, in part, to make up the sum total of human life. The law holds men liable only for the consequences of their acts, which they can and should foresee and by reasonable care and prudence, provide for."
The plaintiff testified that the first plank used by the defendant "seemed to help some." Thereupon the defendant directed a servant to place two longer planks between the front and rear wheels. The automobile moved over these planks and as it rolled off upon the slick surface the wheel suddenly began to spin, thus kicking one of the planks backward and inflicting the unfortunate injury upon the plaintiff.
In our opinion the evidence does not disclose any negligence upon the part of the defendant. Under the circumstances of the case to require the defendant to foresee that the plank would be kicked backward and injure his wife would practically stretch foresight into omniscience. The law does not require omniscience. The motion for nonsuit should have been allowed.