The opinion
PARKER, C.J.
Concurring in part and dissenting in part.
I agree with the majority opinion that the defendants are entitled to a new trial for failure of the court in its charge to apply the provisions of G.S. 20-141 (e) to defendants’ evidence tending to show that plaintiff was guilty of contributory negligence, as set forth in the second issue. I do not agree with this statement in the majority opinion: “To say that one has failed to use due care . . . is to state a mere unsupported conclusion,” and that “defendants justly complain that this instruction gave the jury carte blanche to find them generally careless or negligent for any reason which the evidence might suggest to them.”
Sir A. P. Herbert wittily and happily said in the Uncommon Law, p. 1: “The Common Law of England has been laboriously built about a mythical figure — the figure of 'The Reasonable Man.’ ” To this may be added: The law of negligence has been laboriously built about the figure of “The Reasonable Man’s” failure to use due care. “Due care” is a duty lying at the root of the social compact. In the dawn of the history of the human race, the Lord said unto Cain: “Where is Abel thy brother? And he said, I know not: Am I *655 my brother’s keeper?” Genesis, Ch. 4, v. 9 (King James Version). An old, old question but yet new with all. Whatever doubt may have arisen in the mind of the unhappy man who first asked it, no doubt exists in the law on the right answer, then and now. The law hedges around the lives and persons of men with much more care than it employs when guarding their property, so that, in this particular, it makes, in a way, everyone his brother’s keeper. Negligence is the failure to exercise that degree of care for others’ safety which a reasonably prudent man, under like circumstances, would exercise. It has also been defined as the failure to exercise proper care in the performance of some legal duty which defendant owes the injured party under the circumstances in which they are placed. Of course, failure to exercise due care for another’s safety to be actionable must be the proximate cause of injury, and foreseeability is an element of proximate cause. 3 Strong’s N. C. Index, Negligence, § 1.
Winborne, J., in Hawes v. Refining Co., 236 N.C. 643 , 74 S.E. 2d 17 , said: “And it is a general rule of law, even in the absence of statutory requirement, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances.”
Bobbitt, J., said in Henderson v. Henderson, 239 N.C. 487 , 80 S.E. 2d 383 : “Apart from safety statutes prescribing specific rules governing the operation of motor vehicles, a person operating a motor vehicle must exercise proper care in the way and manner of its operation, proper care being that degree of care that an ordinarily prudent person would exercise under the same or similar circumstances and when charged with like duty. Thus, he must exercise due care as to keeping a proper lookout, as to keeping his car under proper control, and generally so as to avoid collision with persons or other vehicles on the highway.”
“It may be assumed that the jury will understand that a want of ‘due care,’ ‘ordinary care,’ or ‘reasonable care’ given in special charges is equal to negligence, and if the plaintiff 'deems such charges misleading, he should request an explanatory charge.” 38 Am. Jur., Negligence, § 364, p. 1078. In my opinion, the failure to use due care is not a mere unsupported conclusion, but is a fact and is generally used and understood as such in the language of the ordinary man, although speaking most technically it may be considered by some as a mere conclusion.