{ "id": 8621825, "name": "MRS. ARMIDA R. GENTILE v. MRS. ROSE RAY WILSON", "name_abbreviation": "Gentile v. Wilson", "decision_date": "1955-10-12", "docket_number": "", "first_page": "704", "last_page": "707", "citations": [ { "type": "official", "cite": "242 N.C. 704" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "69 S.E. 2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623656 ], "opinion_index": 0, "case_paths": [ "/nc/235/0304-01" ] }, { "cite": "53 S.E. 2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630645 ], "opinion_index": 0, "case_paths": [ "/nc/230/0485-01" ] }, { "cite": "25 S.E. 2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605323 ], "opinion_index": 0, "case_paths": [ "/nc/223/0262-01" ] }, { "cite": "58 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630917 ], "opinion_index": 0, "case_paths": [ "/nc/231/0533-01" ] }, { "cite": "390 S.E. 899", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627910 ], "opinion_index": 0, "case_paths": [ "/nc/211/0536-01" ] } ], "analysis": { "cardinality": 517, "char_count": 9299, "ocr_confidence": 0.588, "pagerank": { "raw": 6.862013170351342e-08, "percentile": 0.4179598887811606 }, "sha256": "02589d73a1eaf0223d1c9fc0cd417905d46af0cfccf2a6c9ad3b368abef72d79", "simhash": "1:eaa7c68c57ca95a8", "word_count": 1593 }, "last_updated": "2023-07-14T17:51:17.837681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Winborne and Higgins, JJ., took no part in the consideration or decision of this case.", "BaRNHill, C. J., and Bobbitt, J., concur in result." ], "parties": [ "MRS. ARMIDA R. GENTILE v. MRS. ROSE RAY WILSON." ], "opinions": [ { "text": "DeviN, J.\nThe plaintiff assigns error in the rulings of the trial judge in the admission of testimony over plaintiff\u2019s objection, but we perceive no substantial harm which could have resulted from these rulings or that the jury was improperly influenced thereby.\nPlaintiff noted numerous exceptions to the court\u2019s charge to the jury. It is contended that the court failed to state correctly and sufficiently the duty incumbent upon the defendant in attempting to move her automobile backward under the circumstances of this case. But when the charge is examined contextually no prejudicial error appears. On this point we note the court charged: \u201cWhen Mrs. Wilson undertook to back her automobile, the requirements of prudent operation were not necessarily satisfied by her looking prior to or at the beginning of the movement back. It was her duty not merely to look, but to keep a reasonably careful outlook in the direction in which her vehicle was travelling and she, under the law, was held to the duty of seeing what she ought to have seen, and it was her duty to keep an outlook behind to see whether the movement of a pedestrian, movement of another vehicle, was likely to be affected by her movement backward.\u201d Thus the court seems to have stated the duty of the defendant to \u201ckeep looking\u201d with reasonable clearness. See also Stovall v. Ragland, 211 N.C. 536, 390 S.E. 899; Cooley v. Baker, 231 N.C. 533, 58 S.E. 2d 115.\nThe defendant assigns error in the following portion of the charge: \u201c(D) Now, under the law in this State, as the court understands it, injuries resulting from events taking place without one\u2019s foresight or expectation or an event which proceeds from an unknown cause or is an unusual effect of a known cause and, therefore, in the exercise of ordinary care, not expected, must be borne by the unfortunate sufferer, that is, a person who might be injured. The law only requires reasonable foresight, and when the injury complained of is not reasonably foreseeable in the exercise of due care, the person whose conduct is under investigation is not under the law answerable therefor. Under the law, persons are held liable for the consequences or occurrences which they can and should foresee and by reasonable care and prudence guard against. Foreseeable injury is a requisite of proximate cause and proximate cause is a requisite for actionable negligence and actionable negligence is a requisite for a recovery for an action for personal injury especially for an act negligently inflicted. (D)\u201d\nThis portion of the charge seems to have been quoted by the learned judge from decisions of this Court collected and approved by Denny, J., in Hiatt v. Ritter, 223 N.C. 262, 25 S.E. 2d 756.\nThe plaintiff also assigns as error that the court charged the jury that in order to constitute actionable negligence the plaintiff must show failure on the part of the defendant to exercise due care in the performance of some legal duty owed the plaintiff under the circumstances, and that such negligent breach of duty was the proximate cause of the injury complained of. It is contended that the phrase \u201cthe proximate cause\u201d used by the court was likely understood by the jury to mean the sole or only proximate cause of the injury, whereas there may be more than one proximate cause, and that thus an additional and undue burden was placed on the plaintiff to negative contributory negligence. It is urged that the court should have said \u201ca\u201d proximate cause, or \u201cone of the\u201d proximate causes.\nHowever we think what this Court said in Harris v. Montgomery Ward & Co., 230 N.C. 485, 53 S.E. 2d 536, renders this exception unavailing on this record. We quote: \u201cIt is sufficient on the issue of primary negligence for a plaintiff to satisfy the jury from the evidence and by its greater weight that the negligence on the part of the defendant was a proximate cause or one of the proximate causes of his injury, where the evidence also tends to show that the negligence of some other person or agency concurred with the negligence of the defendant in producing plaintiff\u2019s injury (citing cases). But when there is no evidence of such concurring negligence as in this case, then the negligence of the defendant must be the proximate cause of the injury, otherwise the plaintiff is not entitled to recover (citing cases).\u201d Mintz v. Murphy, 235 N.C. 304 (312), 69 S.E. 2d 849.\nAfter an examination of the entire charge of the court we are unable to discover prejudicial error in any of the rulings of the court of which the plaintiff can justly complain.\nNo error.\nWinborne and Higgins, JJ., took no part in the consideration or decision of this case.\nBaRNHill, C. J., and Bobbitt, J., concur in result.\nThe foregoing opinion was prepared by DeviN, Emergency Justice, while he was serving in place of Winborne, J., who was absent on account of his physical condition. It is now adopted by the Court and ordered filed.", "type": "majority", "author": "DeviN, J." } ], "attorneys": [ "Helms & Mull\u00eds, James B. McMillan, and Wm. H. Bobbitt, Jr., for plaintiff, appellant.", "Kennedy, Kennedy & Hickman and Frank H. Kennedy for defendant, appellee." ], "corrections": "", "head_matter": "MRS. ARMIDA R. GENTILE v. MRS. ROSE RAY WILSON.\n(Filed 12 October, 1955.)\n1. Automobiles \u00a7\u00a7 8e, 18i\u2014\nTbe charge of the court in this case as to the duty of the defendant, in backing her car, not only to look before attempting the movement, but to keep a reasonably careful lookout in the direction of travel, held without prejudicial error.\n2. Automobiles \u00a7 18i: Negligence \u00a7 20\u2014\nThe charge of the court in this case as to foreseeability as an essential element of proximate cause is held without error.\n3. Same\u2014\nWhere there is no evidence of concurring negligence, an instruction that the burden was on plaintiff: to satisfy the jury from the evidence and by its greater weight that the negligence on the part of defendant was \u201cthe\u201d proximate cause of the injury instead of \u201ca\u201d proximate cause of the injury, is not prejudicial.\nWinborne and Higsins, JJ., took no part in the consideration or decision of this case.\nBarnhill, O. J., and Bobbitt, J., concur in result.\nAppeal by plaintiff from Patton, J., April Term, 1955, of Mecklen-BURG.\nThis was an action to recover damages for a personal injury suffered by the plaintiff as result of having been struck by an automobile which was alleged to have been negligently driven by the defendant.\nThe incident out of which this action arose occurred on South Tryon Street in the city of Charlotte, August 28, 1951, about 8:20 a.m. On this occasion the plaintiff had been driven by her husband north on South Tryon Street to a point on the east side of the street between 3rd and 4th Streets, opposite the Johnston Building where plaintiff was employed. The Johnston Building is on the west side of South Tryon Street. This street is divided into six traffic lanes. Plaintiff stepped out of her husband's automobile onto the street, 2 or 3 feet from the curb, opposite Thacker\u2019s Restaurant, on the east side of the street, and her husband immediately drove off. Near the place where plaintiff got out of the automobile there was a hydrant and an open space marked off around the hydrant. There were several automobiles parked in line along the curb on the east side of the street north of the open space about the hydrant, and the automobile of the defendant was parked immediately north and nearest the space into which plaintiff stepped from the automobile. Plaintiff testified that when she got out of the automobile she stepped back two or three steps, and, facing the street, stood there a moment as she looked to the right and to the left to watch for passing traffic. \u201cI might have been intending to go across the street . . . That building (Johnston Building) is approximately opposite . . . That\u2019s where I was ultimately going.\u201d At this instant the defendant backed her automobile slowly and struck the plaintiff\u2019s knee causing her to fall. She was not run over. She did not see the defendant\u2019s automobile moving. There was evidence that plaintiff suffered a serious injury as result of being struck and caused to fall.\nDefendant\u2019s evidence tended to show that she had parked her automobile at the curb on the east side of the street opposite Thacker\u2019s Restaurant, and gone shopping; that she returned to her automobile accompanied by her daughter and two other ladies; that there was an automobile parked immediately in front; that she walked around the rear of her automobile and got in on the left or west side; that she saw no one in the space immediately behind her automobile; that before starting she looked through the rear-view mirror and saw no one; that her daughter and another lady on the back seat at her request looked through the back window and reported they saw no one in the rear. Defendant testified she moved back slowly and had gone about 4 feet when she felt a bump, stopped, got out and found the plaintiff had been struck and had fallen.\nThe court submitted to the jury three issues: (1) Was the plaintiff injured by the negligence of the defendant as alleged, (2) Did the plaintiff by her own negligence contribute to her injury, (3) What amount is plaintiff entitled to recover?\nThe jury answered the 1st issue \u201cNo.\u201d The court entered judgment that plaintiff recover nothing.\nPlaintiff excepted and appealed assigning errors.\nHelms & Mull\u00eds, James B. McMillan, and Wm. H. Bobbitt, Jr., for plaintiff, appellant.\nKennedy, Kennedy & Hickman and Frank H. Kennedy for defendant, appellee." }, "file_name": "0704-01", "first_page_order": 746, "last_page_order": 749 }