Ingle v. Cassady , 208 N.C. 497 ( 1935 )

Stacy, O. J.

The plaintiff sues to recover for injuries sustained in an automobile accident occurring in the State of Ohio. Liability is to be determined by the law of that State, for unless the plaintiff is entitled to recover there, he is not entitled to recover here. If, however, under the lex loci, a transitory cause of action accrues, it may be prosecuted in another jurisdiction, unless forbidden by public policy or the lex fori. This is conceded. Wise v. Hollowell, 205 N. C., 286, 171 S. E., 82; Steele v. Telegraph Co., 206 N. C., 220, 173 S. E., 583.

The defendant was not an insurer of plaintiff’s safety while on the trip in question, and we agree with the trial court that the evidence offered fails to sbow snob conduct on her part as imports liability under the law applicable. S. v. Cope, 204 N. C., 28, 167 S. E., 456. The plaintiff was injured in an unfortunate accident, it is true, but an accident it was, jrare and simple. Thomas v. Lawrence, 189 N. C., 521, 127 S. E., 585; Patterson v. Ritchie, 202 N. C., 725, 164 S. E., 117. He himself testified: “I do not know what I would have done had I been at the wheel.” He later said he would have applied the brakes rather than put his foot on the accelerator, but he was then speaking in the light of subsequent events. “Hindsight is usually better than foresight.”

While the defendant may not have pursued the safest course or acted with the best judgment or the wisest prudence, in the light of what occurred, still it is not thought that this should be imputed to her for negligence, because with a flat tire and “shimmying” car she was faced with an emergency which required instant action without opportunity for reflection or deliberation. Smith v. R. R., 200 N. C., 177, 156 S. E., 508. She was “trying to hold the car in the road, gripping the wheel and struggling,” when it suddenly went over the embankment and into the ditch. Some allowance must be made for the excitement of the moment and the strain of nerves. 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. Poplin v. Adickes, 203 N. C., 726, 166 S. E., 908; Pridgen v. Produce Co., 199 N. C., 560, 155 S. E., 247; Odom v. R. R., 193 N. C., 442, 137 S. E., 313; Parker v. R. R., 181 N. C., 95, 106 S. E., 755; Norris v. R. R., 152 N. C., 505, 67 S. E., 1017. In Hinton v. R. R., 172 N. C., 587, 90 S. E., 756, it is said: “It is well understood that a person in the presence of an emergency is not usually held to the same deliberation or circumspect care as in ordinary conditions.” In other words, the standard of conduct required in an emergency, as elsewhere, is that of the prudent man. Jernigan v. Jernigan, 207 N. C., 831, 178 S. E., 587; Small v. 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 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. R. R., 173 Mass., 40.

Liad the emergency been brought about by defendant’s own carelessness, as was the case in Luttrell v. Hardin, 193 N. C., 266, 136 S. E., 726, a different situation might have arisen. Annotation, 79 A. L. E., 1277. But plaintiff’s testimony is to the effect that the defendant “was driving carefully and prudently about the time the trouble started.”

The judgment of nonsuit is correct.

Affirmed.

Sci-ieNCk, J., took no part in tbe consideration or decision of tbis case.