{
  "id": 8553746,
  "name": "BILLY GENE KINLEY v. J. BROOKS HONEYCUTT, t/a HONEYCUTT TRANSPORT COMPANY, a PROPRIETORSHIP",
  "name_abbreviation": "Kinley v. Honeycutt",
  "decision_date": "1968-06-19",
  "docket_number": "",
  "first_page": "441",
  "last_page": "444",
  "citations": [
    {
      "type": "official",
      "cite": "1 N.C. App. 441"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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      "cite": "151 S.E. 2d 641",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "268 N.C. 605",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8564336
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/268/0605-01"
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    {
      "cite": "149 S.E. 2d 590",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "268 N.C. 62",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8560126
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/268/0062-01"
      ]
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  "last_updated": "2023-07-14T18:11:01.747951+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Mallard, C.J., and Parker, J., concur."
    ],
    "parties": [
      "BILLY GENE KINLEY v. J. BROOKS HONEYCUTT, t/a HONEYCUTT TRANSPORT COMPANY, a PROPRIETORSHIP."
    ],
    "opinions": [
      {
        "text": "Brock, J.\nPlaintiff seeks to hold defendant liable upon the theory that defendant\u2019s driver failed to open the valve on the tank truck, and that plaintiff\u2019s co-employee was led by defendant\u2019s driver to believe the valve had been opened. However, the complaint is silent as to the manner in which defendant\u2019s driver led plaintiff\u2019s co-employee to believe the truck valve was open other than to allege that the driver climbed up on the truck to a position from which he could open the valve. There is no allegation of how long the driver was in position to open the valve, or of any act on his part that would lead plaintiff\u2019s co-employee to believe the valve had been opened.\nNevertheless, assuming, arguendo, that the driver was negligent in taking his time in opening the valve on the truck, there is no allegation that the driver knew the switch had been thrown in either direction on the pump by plaintiff\u2019s co-employee. There is no allegation that the driver knew that the switch could be thrown on Republic\u2019s pump so as to cause asphalt to be pumped from the vat towards the track, and no allegation that the driver knew the switch had been so thrown. There is no allegation from which it can be reasonably deduced that the defendant\u2019s driver could reasonably foresee that plaintiff\u2019s co-employee would throw the switch on Republic\u2019s pump in the wrong direction.\nOnly negligence which proximately causes or contributes to the accident is of legal import. And foreseeability is an essential element of proximate cause. Williams v. Boulerice, 268 N.C. 62, 149 S.E. 2d 590. Even the fact that the injury would not have occurred but for an asserted act of negligence does not constitute such act a proximate cause of the injury unless consequences of a generally injurious nature were reasonably foreseeable as a result of such act. Ratliff v. Power Co., 268 N.C. 605, 151 S.E. 2d 641.\nWe hold that the complaint in this action fails to allege facts sufficient to withstand the demurrer.\nReversed.\nMallard, C.J., and Parker, J., concur.",
        "type": "majority",
        "author": "Brock, J."
      }
    ],
    "attorneys": [
      "Berry and Bledsoe by C. Ralph Kinsey, Jr., for plaintiff appellee.",
      "Kennedy, Covington, Lobdell and Hickman by Charles V. Tompkins, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "BILLY GENE KINLEY v. J. BROOKS HONEYCUTT, t/a HONEYCUTT TRANSPORT COMPANY, a PROPRIETORSHIP.\n(Filed 19 June 1968.)\n1. Negligence \u00a7 20\u2014 Plaintiff\u2019s injury by hot asphalt is not a result of defendant\u2019s negligence.\nPlaintiff\u2019s allegations were to the effect that defendant delivered by tank truck to the premises of plaintiff\u2019s employer hot asphalt at a temperature of approximately 410 degrees F. which was to be transferred into a vat by means of a flexible pipe, one end of which was connected to a valve on the tank truck and the other end to a valve on an electrically operated pump maintained by the employer which was connected to the vat; that the defendant\u2019s employee, contrary to customary procedure, failed to open the outlet valve on the truck and failed to warn plaintiff\u2019s co-employee not to start the pump; that the co-employee threw the switch on the pump in the wrong direction, causing hot asphalt to be pumped out of the vat toward the defendant\u2019s truck; and that the failure of defendant\u2019s employee to open the valve caused the pipe to burst, resulting in plaintiff\u2019s injuries by the hot asphalt. Held: The complaint fails to allege facts sufficient to state a cause of action, and the demurrer of defendant should have been sustained.\n2. Negligence \u00a7 7\u2014\nOnly negligence which proximately causes or contributes to the accident is of legal import, and foreseeability is an essential element of proximate cause.\nOn Writ of Certiorari to review an Order of Hasty, J., entered. 29 January 1968, Schedule B. Session, Meciclenbuhg Superior Court,\nPlaintiff was an employee of Republic Steel Corporation at its place of business in Charlotte, North Carolina. In the operation of its business, Republic Steel maintains a vat.upon its premises for the storage of hot asphalt. The defendant delivers by tank truck to the premises of Republic Steel hot asphalt at a temperature of approximately 410 degrees F. which is transferred from- the defendant\u2019s tank truck into Republic Steel\u2019s vat. This transfer is accomplished by mean's of a flexible pipe, one end \u00f3f which is connected to a valve on the tank truck and the other end to a valve on an electrically operated pump maintained by Republic Steel which in turn is connected to the vat.\nOn the day in question, after the connection between, defendant\u2019s tank truck and Republic Steel\u2019s pump had been completed, the plaintiff\u2019s co-employee turned the switch on Republic Steel\u2019s pump in the wrong direction, causing the asphalt in the vat to be pumped through the pipe towards the truck instead of from the truck to the vat as was intended. At this time the defendant\u2019s driver had not opened the valve on the tank truck, and the pressure in the pipe caused the pipe to rupture. The plaintiff suffered injury from the hot asphalt spewing from the ruptured pipe, and brings this action to recover damages for personal injury.\nThe pertinent allegations of the complaint are summarized as follows:\n1. Defendant\u2019s employee was sent to deliver hot asphalt by truck to plaintiff\u2019s employer, Republic Steel Corporation (hereinafter referred to as Republic).\n2. The customary procedure- for delivering hot asphalt from defendant\u2019s truck to Republic consisted of four steps in sequence as follows:\na. Defendant\u2019s driver would hook one end of a rubber pipe to an outlet on defendant's truck. A Republic employee would hook the other end of the rubber pipe to an outlet on a Republic pump.\nb. A Republic employee would open a valve on the Republic pump and notify defendant\u2019s driver.\nc. Defendant\u2019s driver would then open an outlet valve on the truck.\nd. A Republic employee would then throw an electric switch on the Republic pump to pump asphalt out of the truck into a vat at Republic.\n3. The defendant\u2019s driver on the occasion in question either knew or should have known that the foregoing steps were customary delivery procedure.\n4. On the specific occasion in question, after the delivery pipe was attached to both the truck and the pump, plaintiff\u2019s co-employee was led by defendant\u2019s employee to believe that the truck valve had been opened, but defendant\u2019s employee failed to open the outlet valve on the truck, and failed to warn plaintiff\u2019s co-employee not to start the pump. Thereafter plaintiff\u2019s co-employee threw the switch on the Republic pump in the wrong direction causing hot asphalt to be pumped out of the Republic vat toward the defendant\u2019s truck instead of out of the defendant\u2019s track toward the Republic vat. Defendant\u2019s driver failed to open the truck valve after the pump had been started even though he knew or in the exercise of due care' should have known that such failure would result in the pipes bursting and spewing hot asphalt over the area wherein the plaintiff was positioned. The negligence of the defendant\u2019s driver was the direct and proximate cause of the plaintiff\u2019s injuries as alleged in the complaint.\nThe defendant demurred to the complaint for failure to state a cause of action. Judge Hasty overruled the demurrer, and defendant applied to this Court for Writ of Certiorari which we issued.\nBerry and Bledsoe by C. Ralph Kinsey, Jr., for plaintiff appellee.\nKennedy, Covington, Lobdell and Hickman by Charles V. Tompkins, Jr., for defendant appellant."
  },
  "file_name": "0441-01",
  "first_page_order": 463,
  "last_page_order": 466
}