SOWERS
v.
MARLEY.
No. 669.
Supreme Court of North Carolina.
May 21, 1952.*671 Phillips & Bower, Lexington, for plaintiff, appellant.
Don A. Walser, Lexington, for defendant, appellee.
ERVIN, Justice.
This case is bottomed on negligence. In an action for death by wrongful act based on negligence, the burden rests on the plaintiff to produce evidence, either direct or circumstantial, sufficient to establish the two essential elements of actionable negligence, namely: (1) That the defendant *672 was guilty of a negligent act or omission; and (2) that such act or omission proximately caused the death of the decedent. Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406; White v. Chappell, 219 N.C. 652, 14 S.E.2d 843; Beach v. Patton, 208 N.C. 134, 179 S.E. 446.
To carry this burden by circumstantial evidence, the plaintiff must present facts which reasonably warrant the inference that the decedent was killed by the actionable negligence of the defendant. Wyrick v. Ballard & Ballard Co., Inc., 224 N.C. 301, 29 S.E.2d 900; Corum v. R. J. Reynolds Tobacco Co., 205 N.C. 213, 171 S.E. 78; Lynch v. Carolina Telephone & Telegraph Co., 204 N.C. 252, 167 S.E. 847. An inference of Negligence can not rest on conjecture or surmise. Smith v. Duke University, 219 N.C. 628, 14 S.E.2d 643; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Ham v. Greenboro Ice & Fuel Co., 204 N.C. 614, 169 S.E. 180; Grimes v. Carolina Coach Co., 203 N.C. 605, 166 S.E. 599; Rountree v. Fountain, 203 N.C. 381, 166 S.E. 329. This is necessarily so because an inference is a permissible conclusion drawn by reason from a premise established by proof. Cogdell v. Wilmington & W. Railroad Co., 132 N.C. 852, 44 S.E. 618; Wollard v. Peterson, 143 Kan. 566, 56 P.2d 476.
The plaintiff undertakes to prove the legal culpability of the defendant in the case at bar by circumstantial evidence. As a consequence, the appeal raises the question whether the facts produced by the plaintiff at the trial reasonably warrant the inference that her intestate was killed by the actionable negligence of the defendant.
The law imposes upon the operator of a motor vehicle the duty to maintain a proper lookout, the duty to keep his vehicle under reasonable control, and the duty to drive at a lawful speed. Register v. Gibbs, 233 N.C. 456, 64 S.E.2d 280. The tragic event producing this litigation happened on a highway outside a business or residential district. Under the statute prescribing speed restrictions, it is unlawful to operate a passenger car on a highway in such a place in excess of fifty-five miles per hour. The defendant did not exceed this definite statutory limit. The speed of a motor vehicle may be unlawful, however, under the circumstances of a particular case, even though such speed is less than the definite statutory limit prescribed for the vehicle in the place where it is being driven. The statute expressly provides that "the fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed * * * when special hazard exists with respect to pedestrians or other traffic", and that "no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing." G.S. § 20-141, as rewritten by Section 17 of Chapter 1067 of the 1947 Session Laws; Rollison v. Hicks, 233 N.C. 99, 63 S.E.2d 190.
The plaintiff insists that the evidence reasonably warrants the inference that the defendant was negligent in that he violated one or more of the three duties enumerated in the preceding paragraph, and that such negligence proximately caused the death of the intestate.
The plaintiff advances this argument to support her position: The intestate was in plain view leading his horse eastward along the northern half of the highway as the defendant approached the place of collision, and in consequence the defendant could have seen him in time to have avoided any injury to him by stopping the Plymouth, or by decreasing its speed, or by changing its course. Despite this, the defendant ran the intestate down, inflicting immediate death upon him. Hence, it is permissible to infer that the defendant negligently killed the intestate by failing to maintain a proper lookout, or by failing to keep the Plymouth under reasonable control, or by driving at a speed greater than was reasonable and prudent under the circumstances.
In the very nature of things, it is not permissible to draw an inference of actionable negligence on the part of the defendant from the plaintiff's twofold premise that "the intestate was in plain view leading his horse eastward along the northern half of the highway as the defendant approached the place of collision and in consequence *673 the defendant could have seen him in time to have avoided any injury to him" unless the premise is supported by the evidence.
There is not a scintilla of evidence as to the route or whereabouts of the plaintiff's intestate and his horse between the time they were seen by the witness Grady Hughes at some undesignated distance west of the place of the collision and the time they were glimpsed by the defendant for a "split second" on the dirt shoulder north of the highway immediately adjacent to the point of impact. The testimony leaves this crucial matter to conjecture and surmise. This being true, there is no evidence of the existence of the supposed fact that "the intestate was in plain view leading his horse eastward along the northern half of the highway as the defendant approached the place of collision."
In reaching this conclusion, we do not overlook the plaintiff's contention that this supposed fact ought to be inferred from the evidence that shortly before the tragic accident the witness Grady Hughes saw the intestate at some undesignated distance west of the place of collision "leading his horse * * * east * * * on Highway 64." This contention conflicts with the accepted and sound rule of law and logic that the facts from which an inference of negligence may be drawn must be proved, and can not themselves be inferred or presumed from other facts which merely raise a conjecture or possibility of their existence. 20 Am.Jur., Evidence, section 165. See, also, in this connection the North Carolina cases heretofore cited, and these additional authorities: Evansville Metal Bed Co. v. Loge, 42 Ind.App. 461, 85 N.E. 979; Hall v. Ferro Concrete Const. Co., 71 Ohio App. 545, 50 N.E.2d 556; 65 C.J.S., Negligence, § 243.
An even stronger consideration negatives the existence of the second supposed fact embodied in the plaintiff's premise, i. e., that the defendant could have seen the intestate in time to have avoided injuring him. The plaintiff did not adduce a single independent fact disclosing how far the Plymouth car was from the place of collision when the intestate and his horse became visible to the defendant. But she did offer in evidence a relevant extra-judicial statement of the defendant, which is not contradicted by other testimony and by reason thereof must be deemed to be true. According to this statement, the intestate and his horse suddenly and unexpectedly emerged from the darkness north of the highway and dashed onto the highway and into the path of the oncoming automobile when the vehicle was almost alongside them, rendering the fatal collision inevitable.
The involuntary judgment of nonsuit is affirmed.