MILLS
v.
WATERS et al.
No. 388.
Supreme Court of North Carolina.
April 16, 1952.*12 Carl V. Venters and J. T. Gresham, Jr., Jacksonville, for plaintiff, appellant.
Summersill & Summersill, Jacksonville, for defendant, appellees.
VALENTINE, Justice.
It was a cold night in December and perfectly natural that the building should be heated in some manner. With the gas tanks and pumps a safe distance from the front door, the presence of an open gas heater well within the room could not be regarded as negligence per se. The decisions of this court are to the effect that in order to establish actionable negligence it must appear: (1) that the defendant, either personally or through an agent, servant or employee, has failed to exercise proper care and diligence in the performance of some legal duty which he owed the plaintiff under the circumstances in which they were at the time. Proper care, of course, means that degree of care which a man of ordinary prudence should use under like circumstances when charged with like duty. And, (2) that such negligent breach of duty was the proximate cause of the injury claimed. In addition it must appear that the negligent act produced the result in continuous sequence. The proof must also show that the negligent act was such that a man of ordinary prudence could have foreseen that such or some similar injurious result was probable under all the facts as they then existed. Ellis v. Sinclair Refining Co., 214 N.C. 388, 199 S.E. 403.
In applying the rule of the prudent man, due consideration must be had for the circumstances prevailing at the time. An allowance must be made for the excitement produced by the situation and the resulting nervous strain.
"One who is required to act in an emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made." Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562, 563. Citing Poplin v. Adickes, 203 N.C. 726, 166 S.E. 908; Pridgen v. Holeman Produce Co., 199 N.C. 560, 155 S.E. 247; Odom v. Atlantic Coast Line R. Co., 193 N.C. 442, 137 S.E. 313; Parker v. Seaboard Air Line R., 181 N.C. 95, 106 S.E. 755; Norris v. Atlantic Coast Line R. Co., 152 N.C. 505, 67 S.E. 1017, 27 L.R.A., N.S., 1069. The standard of conduct required is that of an ordinarily prudent man. Jernigan v. Jernigan, 207 N.C. 831, 178 S.E. 587; Small v. Southern Public Utilities Co., 200 N.C. 719, 158 S.E. 385. `"If the peril seemed imminent, more hasty and violent action was to be expected than *13 would be natural at quieter moments; and such conduct is to be judged with reference to the stress of appearances at the time, and not by the cool estimate of the actual danger formed by outsiders after the event.' Holmes, J., in Gannon v. New York, N. H. & H. R. Co., 173 Mass. 40, 52 N.E. 1075, 43 L.R.A. 833." Ingle v. Cassady, supra.
Applying these well-established rules of actionable negligence to the proof in this case, we are unable to discover any evidence of actionable negligence sufficient to take the case to the jury and sustain a verdict. In reaching this conclusion we have given due consideration to the rule of interpretation as stated in Powell v. Lloyd, 234 N.C. 481, 67 S.E.2d 664; and Gainey v. Rockingham R. Co., 235 N.C. 114, 68 S.E.2d 780.
It was necessary that the filling station be heated in some manner for the health and comfort of the employees working there. We can not appropriately say that the defendant should have foreseen that the plaintiff or some other customer would take a jug of gasoline into the station and there break it so that the free gas would spread over the room and set the building on fire. To so hold would charge the defendants with a degree of prevision not contemplated by the law of negligence. Clark v. Cleveland Drug Co., 204 N.C. 628, 169 S.E. 217; Money v. Travelers' Hotel Co., 174 N.C. 508, 93 S.E. 964, L.R.A. 1918 B, 493; Ellis v. Sinclair Refining Co., supra.
In the case at bar, the emergency was not brought about by the defendants or their agents as in Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726, but was brought about when the plaintiff took the jug of gasoline into the filling station and there in some manner accidentally broke it so that gasoline was spread over the floor and near the open fire. Hence, that case is not controlling here.
This court is reluctant to raise the standard of due care to such an unreasonable length as would practically place every accident in the category of actionable negligence, or make the keeper of a store or service station the insurer of the safety of his customers. Griggs v. Sears, Roebuck & Co., 218 N.C. 166, 10 S.E.2d 623.
We can not hold upon this record that the defendants are liable for the unfortunate injury sustained by plaintiff. Therefore, the judgment below is affirmed.