CAMP
v.
SOUTHERN RY. CO.
No. 162.
Supreme Court of North Carolina.
October 11, 1950.*359 Hamrick & Jones, Rutherfordton, and W. Y. Wilkins, Jr., Tryon, for plaintiff appellant.
Joyner & Howison, Raleigh, and Jones & Ward, Asheville, for defendant appellee.
STACY, Chief Justice.
The appeal poses the question whether there is sufficient evidence to sustain a finding of actionable negligence on the part of the defendant. The trial court answered in the negative, and we approve.
There is no suggestion that the type of box car here used was inappropriate for hauling cross-ties. The opposite is intimated. And while it is contended the defendant was negligent in failing to equip the car with proper appliances for use in entering or leaving it, there is no evidence to support the contention. Plaintiff's own testimony points the other way. The car in question was a standardized box car, fully equipped with all appliances required by law. Indeed, to have added others, or those which the plaintiff now says should have been added, might have resulted in a more hazardous instrumentality. At least, the question is subject to opposite contentions.
Nor is the conduct of Ed Jones and Lee Mack, or either of them, to be imputed to the defendant for negligence. What they did was natural and spontaneous, kindly and gratuitously offered, and so received. Neither they nor the defendant could have foreseen or anticipated any injurious effects or the consequences which followed. They were purely accidental or misadventurous. Plaintiff's action is one in tort, and he may not recover for an accidental injury. Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210, 73 L.Ed. 601; Atlantic Coast Line R. Co. v. Driggers, 279 U.S. 787, 49 S.Ct. 490, 73 L.Ed. 957.
Plaintiff relies principally on the cases of Hill v. Atlantic Coast Line R. Co., 229 N.C. 236, 49 S.E.2d 481; Id., 336 U.S. 911, 69 S.Ct. 507, 93 L.Ed. 1075; Id., 231 N.C. 499, 57 S.E.2d 781, and Bailey v. Central Vermont R. Co., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444, but these cases are readily distinguishable from the one at bar. The factual situations are quite different. In the cases cited, there were duties resting on the defendants which they omitted to perform, to the plaintiffs' hurt. Here, no such omission is made to appear. Plaintiff shows no default on the part of the defendant which resulted in injury to him. Hence his action fails, and the court properly directed a verdict for the defendant. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458; Atchison, T. & S. F. R. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896. The basis of liability under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et. seq., is negligence proximately producing injury. The plaintiff must show something more than a fortuitous injury. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Brady v. Southern R. Co., 222 N.C. 367, 23 S.E.2d 334; Id., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572.
*360 Of course, it is easy to be wise in retrospect, and the plaintiff now perceives exactly how the injury could have been avoided. He tells us so. But when pressed to say just wherein the defendant was negligent, he answers, "That is a matter for the jury." The courts are not at liberty to attribute the plaintiff's misfortune to somebody else's negligence in the absence of sufficient evidence to support the attribution. New York Central R. Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198, 74 L.Ed. 562; Patton v. Texas & P. R. Co., 179 U.S. 685, 21 S.Ct. 275, 45 L.Ed. 361.
The conclusion is an affirmance of the Judgment below.
No error.
BARNHILL J., dissents.