Miller v. Jones

BaeNHill, J.,

dissenting: I am not in disagreement with the law as stated in the majority opinion, but I find it impossible to concur in the view that there is evidence of negligence to be submitted to a jury.

The plaintiff alleges that these defendants failed to close the doors and windows of his store or to notify him to do so before the approach of the road sweeper and blower. There is neither allegation nor evidence that the machine was being operated in a careless or negligent manner or that defendants otherwise failed to exercise due care. Plaintiff rests his case on the one allegation of want of proper notice.

Conceding that he was entitled to notice, upon whom rested the duty to notify?

The work was being done under the supervision of the State Highway Commission. Its officials were in charge, supervising the work. It was for them to direct the manner and method of its performance. If notice was due it was due from them. On this record it is not made to appear that this duty had been delegated to or rested upon these defendants. They were mere employees charged with the duty of operating the road sweeper. To hold them liable for alleged derelictions of their superiors, without proof that this was one of the duties of their employment,' is, to my mind, a novel application of the law of negligence.

*792 It is suggested that counsel for defendants have not advanced the contention there is no evidence of negligence to be submitted to a jury but have elected instead to argue that there was no willful or malicious wrong. But the judgment was a judgment of nonsuit. The court below necessarily concluded there was no such evidence. This conclusion is challenged by the exception to the judgment. Are we to fail to sustain a judgment correctly entered because, forsooth, counsel may have “missed the boat” in their brief? I do not so understand.

The brief of defendants does disclose, as suggested, that in making the motion to dismiss as of nonsuit they relied in part at least upon the absence of proof of willfulness. Even so, the record, which is ordinarily controlling, contains the simple entry: “At the close of all the evidence, being the plaintiff’s evidence, the defendants made a motion for judgment of nonsuit. Motion allowed. Plaintiff excepts.” This is followed by a simple judgment of nonsuit. There is no indication here that the court below adopted, followed, or was misled by the theory of defendants.

Then too it is said there is no evidence defendants were under the actual supervision of their employers. “The inferences from the whole evidence are directly to the contrary.” And further, the presumption that they were directed by officers in Raleigh “to perform a lawful act in an unlawful or negligent manner is too rash to be indulged in.” No one so contends.

In this connection I call attention to the allegation that “defendant was engaged as a tractor operator, working under the supervision of Mr. S. B. Brinkley, Road Oil Supervisor of the Ninth Highway Division”; and to the evidence “They were preparing to retreat the road with bituminous treatment at the time.” A retreatment project calls for a substantial force of workers, foremen, and supervisors. So common, ordinary observation would indicate. Certainly, to my mind, there is no presumption that two men operating a sweeper and blower on such a project were all alone on the job.

It is alleged as stated that defendants failed to control the dust that arose from the operation of the sweeper. Even so, there is no allegation that the dust could be controlled or that defendants failed to use any available means to that end. It is a matter of common knowledge that wind controls the flow of dust. Hence plaintiff might have alleged with equal force that defendants failed to control the wind. Neither is an allegation of negligence.

The only proof in this respect is to the effect that dust arose from the sweeper and permeated plaintiff’s store. Bes ipsa, loquitur does not apply. Hence there is no evidence to support the allegation.

After all there is only one simple question presented on this appeal. The evidence is all to the effect that defendants did not notify plaintiff *793 of tbe approach of the sweeper. There is no evidence such duty was an incident of their employment. If, as a matter of law, it was their duty to notify, and we can so hold, the judgment below should be reversed. If not, it should be affirmed.

Being of the opinion that plaintiff has failed to offer any evidence of actionable negligence, I vote to affirm.