{ "id": 8628032, "name": "OPAL HERRING v. LLOYD HUMPHREY", "name_abbreviation": "Herring v. Humphrey", "decision_date": "1961-05-24", "docket_number": "", "first_page": "741", "last_page": "746", "citations": [ { "type": "official", "cite": "254 N.C. 741" } ], "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": "23 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630422 ], "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0367-01" ] }, { "cite": "177 S.E. 796", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627238 ], "opinion_index": 0, "case_paths": [ "/nc/207/0545-01" ] }, { "cite": "92 S.E. 2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219589 ], "opinion_index": 0, "case_paths": [ "/nc/244/0065-01" ] }, { "cite": "100 S.E. 2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626577 ], "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0262-01" ] }, { "cite": "51 A.L.R. 2d 633", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "100 S.E. 2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627027 ], "opinion_index": 0, "case_paths": [ "/nc/247/0356-01" ] }, { "cite": "130 S.E. 638", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611841 ], "opinion_index": 0, "case_paths": [ "/nc/190/0649-01" ] }, { "cite": "111 S.E. 2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626593 ], "opinion_index": 0, "case_paths": [ "/nc/251/0581-01" ] } ], "analysis": { "cardinality": 700, "char_count": 15148, "ocr_confidence": 0.554, "pagerank": { "raw": 1.3273070585251067e-07, "percentile": 0.628198400756183 }, "sha256": "2f32551c278bf01a7b3878053a211e52a1589aaf21769309582800e8473ba9f1", "simhash": "1:aaf30e4f5354b67a", "word_count": 2547 }, "last_updated": "2023-07-14T21:52:35.681015+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PARKER, J., dissents." ], "parties": [ "OPAL HERRING v. LLOYD HUMPHREY." ], "opinions": [ { "text": "Bobbitt, J.\nPlaintiff\u2019s evidence tends to show persons of all ages frequently passed along Grainger Avenue, the railroad track and on or near the vacant lot where the bulldozer was parked. It does not disclose (1) when, why, or by whom, the bulldozer was parked on this vacant lot, or any circumstance incident to the parking thereof, or (2) whether it had been parked at this location on any occasion prior to December 1, 1958, or (3) the ownership of the lot on which it was parked.\nThe testimony of Elijah Jones is the only evidence as to where the bulldozer was parked. Buck Waters testified the lot referred to by Jones was \u201cbetween Neuse Distributors and Grady Hardware.\u201d Presumably, the bulldozer was on a portion of the vacant lot that extended beyond (north) of any'building or structure of Neuse Distributors.\nElijah Jones testified this \u201cwas the first time (he) had been there.\u201d There is no evidence that Charlie McKinne had been there on any prior occasion. McKinne, although in Kinston, did not testify. Mrs. Cogdell, case worker for Lenoir County Welfare Department, testified that McKinne had been \u201cto Morrison Training School, Hoffman, sent there by the Juvenile Court on an accumulation of charges, one of which was his admission of his participation in driving the bulldozer, truancy, and . . . was ... on violation of court probation.\u201d\nThere was no evidence as to whether the bulldozer was so constructed and equipped that the ignition system could not be locked. Nor was there evidence as to whether the bulldozer was left in gear when parked.\nJones and McKinne, when they got on the bulldozer, were inter-meddlers and trespassers and were well aware of that fact. They refused to heed William Blango\u2019s warning \u201cto get down.\u201d It was after dark. Nothing appears to indicate any other person was near the bulldozer. McKinne\u2019s prior experience, if any, with automotive equipment is not disclosed. Whatever he did, it was sufficient to start the motor and to set the bulldozer in motion. There was no evidence, apart from the testimony of Jones, as to how the bulldozer could be set in motion.\nNeither Jones nor McKinne was injured. The attractive nuisance doctrine, considered recently in Dean v. Construction Co., 251 N.C. 581, 111 S.E. 2d 827, applies only in favor of (injured) children of tender years. 38 Am. Jur., Negligence \u00a7 156; 65 C.J.S., Negligence \u00a7 29(11). It is an exception to the general rule \u201cthat an owner or person in charge of property has no duty to a trespasser except to refrain from injuring him intentionally, or wantonly.\u201d 65 C.J.S., Negligence \u00a7 29(1), p. 457; 38 Am. Jur., Negligence \u00a7 144.\nThe parked bulldozer, until set in motion by McKinne, was harmless. It became dangerous on account of McKinne\u2019s wrongful conduct.\nThe evidence was sufficient to show that defendant knew or should have known the bulldozer, if set in motion and abandoned while in motion, would likely endanger persons or property in the area. It was sufficient to show that the bulldozer could be seen by passersby, including children of tender years. But there was no evidence that any child or children, in play or otherwise, had ever climbed upon the bulldozer or had tampered with it in any manner or had even observed it at close hand. The crucial question is whether, under these circumstances, the evidence is sufficient to support a finding that defendant in the exercise of reasonable care should have foreseen that a trespassing child would likely get on the bulldozer and set it in motion.\nIn Campbell v. Laundry, 190 N.C. 649, 130 S.E. 638, cited by plaintiff, the action was for the wrongful death of a four-year old boy. There, the parking of the laundry truck in violation of the city ordinance constituted the alleged negligence. Similarly, in Arnett v. Yeago, 247 N.C. 356, 100 S.E. 2d 855, an action for injury to a three-year old boy, the parking of the automobile in violation of statutes constituted the alleged negligence. See Annotation, \u201cLiability for damage or injury by stranger starting motor vehicle left parked on street.\u201d 51 A.L.R. 2d 633. As stated by Higgins, J., in Williams v. Mickens, 247 N.C. 262, 264, 100 S.E. 2d 511: \u201cNegligence in the Campbell case consisted in the leaving of a motor vehicle illegally parked in such condition as rendered it dangerous to heedless children who were known by the owner to be exposed to the hazard.\u201d This applies equally to the factual situation in the Arnett case. Here, the bulldozer was not parked on a public street but on a private lot. It was not set in motion by an accidental touching of a lever or gear shift (as in Campbell and Arnett) but by McKinne\u2019s intentional and deliberate efforts.\nIt was held in Williams v. Mickens, supra, that the owner of an automobile, who had parked his car in a lawful manner but had left the keys in the ignition switch, was not liable for injuries inflicted by the negligent operation thereof by a thief.\nOrdinarily, in this jurisdiction, foreseeability of injury is considered an element of proximate cause. McNair v. Richardson, 244 N.C. 65, 92 S.E. 2d 459. Thus, in Campbell and Arnett the question was whether the defendant should have reasonably foreseen consequences of an injurious nature would likely result from the illegal parking of the vehicles. Here, there is neither allegation nor evidence that the bulldozer was illegally parked. Moreover, the fact the bulldozer was left in such condition it could be started by any unauthorized person capable of manipulating the starter and gears would not constitute negligence (Williams v. Mickens, supra) unless the circumstances were such that defendant should have reasonably foreseen that a trespassing child would likely get on the bulldozer and set it in motion. Under these circumstances, foreseeability is essential to the basic element of negligence.\n\u201cThe law only requires reasonable foresight, and when the injury complained of is not reasonably foreseeable, in the exercise of due care, the party whose conduct is under investigation is not answerable therefor.\u201d Osborne v. Coal Co., 207 N.C. 545, 177 S.E. 796. In Brady v. R. R., 222 N.C. 367, 373, 23 S.E. 2d 334, Devin, J. (later C.J.), quotes with approval this statement: \u201cOne is bound to anticipate and provide against what usually happens and what is likely to happen ; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable.\u201d See 65 C.J.S., Negligence \u00a7 5, p.p. 361-362; 38 Am. Jur., Negligence \u00a7 24.\nIn summary: Defendant\u2019s bulldozer was parked, after dark, 35 to 40 feet from Grainger Avenue. It could be seen from Grainger Avenue. It could be set in motion by any person, adult or child, who intentionally and deliberately manipulated the starter and gears. There was no evidence defendant knew or should have known of any prior incident where a bulldozer so parked and equipped had been set in motion by any unauthorized person. There was no evidence that any child or children, in play or otherwise, had ever climbed upon the bulldozer or tampered with it in any manner or even observed it at close hand.\nIt now appears the bulldozer was started and set in motion by the intentional, deliberate and wrongful conduct of McKinne, a boy then subject to the Juvenile Court. But, \u201c(f)oresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence. It is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated.\u201d Shear-man and Redfield on Negligence, Revised Edition, \u00a7 24.\nThe conclusion reached is that the evidence was insufficient to support a finding that defendant\u2019s bulldozer was parked at such place and in such manner that defendant in the exercise of due care should have foreseen that a trespassing child would likely get on the bulldozer and set it in motion. While a possibility, such an occurrence would seem unlikely, improbable and remote.\nWhile in sympathy with plaintiff\u2019s predicament, the evidence here discloses her injuries and damage were caused solely by the intentional, deliberate and wrongful acts of McKinne. Hence, the judgment of involuntary nonsuit must be affirmed.\nAffirmed.\nPARKER, J., dissents.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Jones, Reed & Griffin for plaintiff, appellant.", "White \u25a0& Aycock for defendant, appellee." ], "corrections": "", "head_matter": "OPAL HERRING v. LLOYD HUMPHREY.\n(Filed 24 May, 1961.)\n1. Negligence \u00a7 36\u2014\nThe doctrine of attractive nuisance applies only in an action to recover for injury to a child and the doctrine is not a predicate for liability on the part of the owner for injuries resulting when a child sets in motion a dangerous instrumentality which causes damage to the property of a third person.\n2. Negligence \u00a7 7\u2014\nForeseeability is an element of proximate cause, but the law requires only reasonable foresight, judged from the circumstances prior to the occurrence, and does not require that the unusual, unlikely or remotely probable be anticipated.\n3. Negligence \u00a7 24a\u2014 Evidence held insufficient to show negligence in leaving bulldozer unattended on vacant lot.\nThe evidence tended to show that defendant parked his buEdozer upon a vacant lot some 35 to 40 feet from a street, that the bulldozer could be set in motion by any person who intentionally manipulated the starter and gears, that on the occasion in suit children climbed upon the bulldozer and one of them started it in motion, and that the bulldozer, without any person on it, travelled some 300 yards and ran into plaintiff\u2019s house, causing the damage in suit. There was no evidence that any child or children had theretofore climbed on the bulldozer, tampered with it in any manner, or had even been observed close thereto. Held: The evidence is insufficient to be submitted to the jury on the question of defendant\u2019s negligence.\nParker, J., dissents.\nAppeal by plaintiff from Parker, J., October, 1960, Civil Term, of LENOIR.\nPlaintiff\u2019s action is to recover damages for personal injuries and for damage to her furniture sustained December 1, 1958, when defendant\u2019s bulldozer, \u201cwith nobody on it,\u201d crashed into the dwelling at 413 East Grainger Avenue (Kinston) in which plaintiff resided.\nThe dwelling at 413 East Grainger Avenue was west of the track of the Atlantic Coast Line Railroad. To the west of said track, there was, first, a vacant lot, second, a dwelling occupied by Mr. and Mrs. Jake Moore, and third, the dwelling at 413 East Grainger Avenue. To the east of said track, there was, first, the Neuse Distributing Company, second, a vacant lot, and third, Grady\u2019s Hardware.\nDefendant was engaged in the operation of motor driven equipment, including bulldozers. On December 1, 1958, defendant owned a bulldozer, weighing several tons, which was parked, unattended, on a vacant lot between the Neuse Distributing Company and Grady\u2019s Hardware.\nPlaintiff alleged children, playing thereon, set the bulldozer in motion and immediately abandoned it, after which the bulldozer, unattended and out of control, traveled approximately one block, crossing the railroad track and crashing into said dwelling.\nPlaintiff alleged the damages she sustained were proximately caused by the negligence of defendant. She alleged, in substance, that the bulldozer \u201cwas so constructed and equipped that the switch, including the ignition system could not be locked, and . . . the motor could be started and the said machine set in motion by simply turning the switch on the ignition system and putting the same in gear\u201d; that the bulldozer, in the hands of a child or children of tender years, was a dangerous instrumentality and \u201cits presence in a thickly populated community in which children of tender years were accustomed to play constituted an attractive nuisance\u201d; that defendant knew or should have known that children of tender years frequented the lot where the bulldozer was parked and were attracted by its presence; that defendant knew or should have known that a child of tender years could start the motor and set the bulldozer in motion by turning the switch and putting it in gear or, if left in gear, simply by starting the motor; and that defendant knew or should have known that children \u201cwould play upon the said machine, tamper with the switch and other gadgets with which the machine was equipped and start the motor of the said machine and set the said machine in motion, constituting the same a dangerous instrumentality and endangering the life, limb and property of persons in the area in which the said bulldozer was parked.\u201d\nElijah Jones (sometimes referred to as Simon Blango) was the only witness who testified as to what started the bulldozer on its destructive course. His testimony, in substance, is set forth in the following numbered paragraphs.\n1. Three boys were walking on the paved street (Grainger Avenue) on their way to \u201cMr. Hill\u2019s store, . . . across the street from Grady Hardware.\u201d William Blango, referred to as Elijah\u2019s brother, had been sent to the store by his father. William was fourteen. Charlie McKinne, whose age was ten years, eight months and four days, and Elij ah, who was ten but younger than McKinne, went along with William.\n\u25a0 2. The three boys were on the opposite side of the street when they saw the bulldozer. It was \u201cparked on the side of Grady\u2019s,\u201d 35 to 40 feet back from Grainger Avenue. There was no fence between the street and the bulldozer. McKinne went over to where the bulldozer was and Elijah soon followed him. Both got on the bulldozer. William did not stop but \u201cwalked on toward-the store.\u201d When he saw McKinne and Elijah on the bulldozer, William told them \u201cto get down,\u201d but they \u201cstayed up there.\u201d\n3. McKinne \u201cpushed down on the piece where (sic) starts it.\u201d He \u201ccranked it up and jumped down.\u201d He \u201cmashed down on the spring, or something, up there to start it. I (Elijah) don\u2019t know what it was. When he mashed down, it started going.\u201d Elijah jumped off the bulldozer before it started in motion. McKinne jumped off after it started in motion.\n4. The bulldozer \u201ckept on going\u201d but \u201cwasn\u2019t going fast.\u201d It crossed a ditch, then crossed the railroad track. Thereafter, Elijah could not see what happened. McKinne and Elijah joined William at the store and thereafter went home.\nOn the west side of the track, George S. Taylor \u201cheard the bulldozer and thought it was a train.\u201d He testified: \u201cI saw it was a bulldozer coming with nobody on it. It was within 10 yards of the house when I saw it.\u201d Again: \u201cThe path it came across (was) halfway between the street and Mr. Moore\u2019s house because it cracked the walk.\u201d He testified the distance from the vacant lot on the north end of Grady\u2019s Hardware to the dwelling at 413 East Grainger Avenue was 300 yards.\nReference will be made in the opinion to other features of the evidence.\nAt the close of plaintiff\u2019s evidence, the court entered judgment of involuntary nonsuit. Plaintiff excepted and appealed.\nJones, Reed & Griffin for plaintiff, appellant.\nWhite \u25a0& Aycock for defendant, appellee." }, "file_name": "0741-01", "first_page_order": 779, "last_page_order": 784 }