#### ELVIE M. KEENER v. GLENN M. LITSINGER AND W. R. GRACE & COMPANY, A CORPORATION

No. 7119SC402

(Filed 23 June 1971)

Automobiles § 90— accident case — instructions — proximate cause

The failure of the trial court to give an adequate definition of “proximate cause” in an automobile accident case is reversible error and entitles the appellant to a new trial.

Appeal by plaintiff from Gambill, Judge, 11 January 1971 Session of Cabarrus County Superior Court.

Plaintiff instituted this action seeking to recover for personal injuries sustained when an automobile driven by defendant Glenn M. Litsinger collided with an automobile driven by plaintiff. Evidence offered by plaintiff tended to show that she was stopped on the inside lane of a four-lane highway going south into Charlotte waiting for two cars in front of her to turn left when she was struck in the rear by a car driven by defendant Litsinger, an employee of W. R. Grace & Company. Plaintiff testified that she overheard defendant Litsinger tell the investigating Highway Patrolman that he was traveling at the speed limit of 60 m.p.h. when he glanced away from the highway, and when he looked back, he was on the back of plaintiff’s car.

Trooper B. W. Padgett of the Highway Patrol, the investigating officer, called by plaintiff, testified that defendant Lit-singer told him that he had been traveling south in the outside lane as he approached a median cross-over. As he approached, a car pulled across the highway in front of him and he veered to the left to avoid it and struck the rear of plaintiff’s vehicle. The trooper further testified that his investigation revealed that a car in the inside lane in front of plaintiff’s vehicle pulled into the outside lane in front of defendant Litsinger and defendant switched lanes to avoid hitting it.

Defendants did not offer any evidence.

The jury returned a verdict finding no negligence on the part of defendants. From a judgment that plaintiff recover nothing of defendants, plaintiff appeals to this Court.

*591 Bedford W. Black and Clarence E. Horton, Jr., for plaintiff appellant.

K. Michael Koontz for defendant appellees.

CAMPBELL, Judge.

Plaintiff’s first assignment of error is directed at the failure of the trial judge to define proximate cause in his charge to the jury. This is a valid assignment of error. Although the trial judge referred to proximate cause several times in the charge, nowhere in the charge do we find a proper definition of proximate cause. The closest that the court came to attempting a definition of proximate cause was when the court stated:

> “Negligence without proximate cause the defendant is not liable, but negligence must be coupled with proximate cause, the cause without which the injury would not have occurred.” (Emphasis added.)

It is clear that this short statement did not meet the definition set forth by the Supreme Court in Nance v. Parks, 266 N.C. 206, 146 S.E. 2d 24 (1966) :

> “Proximate cause is ‘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 a result was probable under all the facts as they existed.’ Mattingly v. R.R., 253 N.C. 746, 750, 117 S.E. 2d 844, 847. Foreseeable injury is a requisite of proximate cause, which is, in turn, a requisite for actionable negligence. Osborne v. Coal Co., 207 N.C. 545, 177 S.E. 796.”

A proper definition of proximate cause is mandatory and a new trial will be ordered where a proper definition is not given. Barefoot v. Joyner, 270 N.C. 388, 154 S.E. 2d 543 (1967). Here, the trial judge failed to give the proper definition.

New trial.

Judges Britt and Graham concur.