K. G. JEFFREYS, Administrator of the estate of Sherry Lee Jeffreys, Deceased,
v.
CITY OF BURLINGTON, a municipal corporation.
No. 737.
Supreme Court of North Carolina.
January 12, 1962.*502 Clarence Ross, Graham, and Thomas C. Carter, Burlington, for plaintiff appellant.
W. D. Madry, Burlington, Dalton, Long & Latham, for defendant appellee.
DENNY, Justice.
The plaintiff's assignments of error Nos. 3 and 4 are to the submission of the second and third issues on contributory negligence, and assignments of error Nos. 11 and 12 are directed to the following portions of the court's charge to the jury on said issues: "So here if you find from the evidence and by its greater weight that there was negligence on the part of the custodian and that this negligence on the part of the custodian of the infant child was the proximate cause or one of the proximate causes contributing to her fatal injury by burning, and you are further so satisfied that the father K. G. Jeffreys consented and agreed to the appointment of this custodian, then you should answer that second issue `Yes' in favor of the defendant, the City of Burlington." (Exception No. 11) "(A)nd likewise, as to the third issue, if you are satisfied by the evidence and by its greater weight that the mother was negligent in leaving the child as she did under the circumstances, all the circumstances you find them to have been and that her negligence constituted want of due care and was one of the proximate causes of the death and fatal injury of the child, or that the custodian of the child was employed by her and that the custodian was negligent in the care of the child and failed to exercise ordinary prudence by keeping the child away from dangers which she knew, or in the exercise of due care should have known was reasonably likely to produce injury to the child, and this negligence on the part of the custodian was one of the proximate causes of the fatal injury to the child, then answer the third issue in favor of the defendant, City of Burlington, `Yes.'" (Exception No. 12)
The mere fact that the plaintiff's intestate suffered an accident which resulted in her death, standing alone, is insufficient to establish negligence against the custodian of plaintiff's intestate. Negligence is not to be presumed from the mere fact of injury. Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477; Robbins v. Crawford, 246 N.C. 622, 99 S.E.2d 852; Williams v. McSwain, 248 N.C. 13, 102 S.E.2d 464; Williamson v. Randall, 248 N.C. 20, 102 S.E.2d 381; Sloan v. Carolina Power & Light Co., 248 N.C. 125, 102 S.E.2d 822. Therefore, where there is no evidence tending to establish negligence on the part of the custodian of a child, there is no negligence *503 to impute to the parents of the child.
In 67 C.J.S. Parent and Child § 46, page 749, et seq., it is said:
"Contributory negligence on the part of the parent ordinarily will preclude a recovery by him for an injury to the child. Similarly, contributory negligence on the part of the custodian of the child, where imputed to the parent in accordance with the rules discussed in Negligence § 163, will bar recovery by the parent.
"The ordinary rules of the law of negligence apply in determining the parent's contributory negligence. It is the duty of a parent or other person having the care, custody, and control of a child to exercise ordinary care for its safety, and, where failure to do so contributes proximately with the negligence of third persons to cause injury to the child, such parent, or other custodian, is guilty of contributory negligence. * * *
"Ordinary care on the part of a parent or other custodian of a child is such care as a person of ordinary prudence would exercise for the child's safety under the same or similar circumstances. * * * (A) parent may be free from contributory negligence where the child escapes into a place of danger in the street or highway while temporarily left alone or while the parent's attention is momentarily diverted from the child. * * *" citing Brown McClain Transfer Co. v. Major's Adm'r, 251 Ky. 741, 65 S.W.2d 992; Smith v. City of Baton Rouge, 166 La. 472, 117 So. 559; Id., 9 La.App. 19, 119 So. 98.
In 65 C.J.S. Negligence § 163, page 805, et seq., it is said: "Where a child sustains injury as the result of the concurrent negligence of a third person and one in whose charge he has been placed by a parent, the negligence of the custodian may be imputed to the parent. Where, however, the relation of master and servant or principal and agent with respect to the care, custody, and control of the child does not exist between the parent and the custodian, the negligence of the latter is not imputed to the parent, * * *" citing Seaboard Air Line Ry. Co. v. Sarman, 38 Ga.App. 637, 144 S.E. 810. See also Ferrell v. Dixie Cotton Mills, 157 N.C. 528, 73 S.E. 142, 37 L.R.A.,N.S., 64, and Comer v. City of Winston-Salem, 178 N.C. 383, 100 S.E. 619.
There is no evidence offered in the trial below tending to show that the relation of master and servant existed between Arlene Hurlocker, the custodian, and the parents of plaintiff's intestate or that the parents of the child had any reason to believe that the sister of the child's mother was not a reliable custodian of the children. The evidence of the mother of the plaintiff's intestate and sister of the custodian on this point was as follows: "I left Sherry and my son with my sister, and they had been left with her time and time again, and I felt they were safe with her because she had always proven to be capable. * * * When I left, Sherry wanted to go outside and I asked Arlene if she would help her get her rocking chair on the front porch, she wanted to sit out there with her doll. When I left home Arlene was in the process of getting her settled and the little boy was inside, he wanted to watch television."
Where was the custodian when the little girl went into the street? She may have been engaged in a legitimate errand, consonant with her duties as custodian of the children left in her care. The evidence is silent in this respect.
A careful examination of the evidence adduced in the trial below leads us to the conclusion that it is insufficient to support the issues of contributory negligence submitted to the jury as to the respective parents of plaintiff's intestate. Neither do we think the evidence tends to support the view that the parents of plaintiff's *504 intestate were negligent in leaving their children at the home in the custody of Arlene Hurlocker.
In our opinion, the evidence offered in the trial below did not warrant the instruction given on the issues of contributory negligence to which the plaintiff excepted and assigns as error, and we so hold.
These assignments of error are upheld.
Since the verdict below was in favor of the defendant on the second and third issues, the City did not appeal. Hence, the question as to whether or not the defendant is entitled to a nonsuit on the evidence presented on this record is not before us for consideration.
A new trial is awarded the plaintiff.
New trial.