Tew v. Runnels

105 S.E.2d 108 (1958) 249 N.C. 1

Mrs. Loren M. TEW, Administratrix of the Estate of Loren M. Tew, Deceased,
v.
Louis Clayton RUNNELS.

No. 163.

Supreme Court of North Carolina.

October 8, 1958.

Jonas & Jonas, Lincolnton, Helms, Mulliss, McMillan & Johnston, Wm. H. Bobbitt, Jr., Charlotte, Mullen, Holland & Cooke, Gastonia, for defendant-appellant.

William J. Allran, Jr., Cherryville, Hugh W. Johnston, Gastonia, for plaintiff-appellee.

DENNY, Justice.

The sole question for determination is whether or not upon the evidence adduced in the trial below the defendant was entitled to have his motion for judgment as of nonsuit sustained on the ground that the plaintiff's intestate was guilty of contributory negligence as a matter of law.

The defendant offered evidence; therefore, the only motion for judgment as of nonsuit to be considered is that made at the close of all the evidence. Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598.

In considering such motion, we will not only consider evidence offered by the plaintiff but that offered by the defendant which is favorable to the plaintiff or not in conflict therewith, or when it may be used to clarify or explain the plaintiff's evidence. Simmons v. Rogers, 247 N.C. 340, 100 S.E.2d 849; Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19; Godwin v. Johnson Cotton Co., 238 N.C. 627, 78 S.E.2d 772; Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543; Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.

A nonsuit on the ground of contributory negligence should not be granted unless the plaintiff's evidence, taken in the light most favorable to him, so clearly establishes such negligence that no other reasonable inference or conclusion can be drawn therefrom. Simmons v. Rogers, supra; Keener v. Beal, supra; Blevins v. France, 244 N.C. 334, 93 S.E.2d 549; Bradham v. McLean Trucking Co., 243 N.C. 708, 91 S.E.2d 891; Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676.

Even so, the negligence, if any, of the plaintiff's intestate to bar recovery need not be the sole proximate cause of his injury or death. It is sufficient if it contributed to his injury or death as a proximate cause, or one of them. Blevins v. France, supra; Sheldon v. Childers, 240 N.C. 449, 82 S.E.2d 396; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Parkway Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E.2d 623.

In Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185, 190, Barnhill, J., later C. J., in speaking for the Court, said: "The owner of an automobile has the right to control and direct its operation. So then when the owner is an occupant of an automobile being operated by another with his permission or at his request, nothing else appearing, the negligence of the driver is imputable to the owner. (Citations omitted.) * * *

"Strictly speaking the person operating with the permission or at the request of the owner-occupant is not an agent or employee of the owner, but the relationship is such that the law of agency is applied. * * *" See Annotation: Automobile Accident—Owner's Presence, 50 A.L.R. 2d 1281, et seq.

In considering whether or not the negligence of the driver is imputable to the owner, the Court, in the above case, further said: "The test is this: Did the owner, under the circumstances disclosed, have the legal right to control the manner in which the automobile was being operated —was his relation to its operation such that he would have been responsible to a third party for the negligence of the driver? 38 Am.Jur. 931. If the owner possessed the right to control, that he did not exercise it is immaterial." Dillon v. City of Winston-Salem, 221 N.C. 512, 20 S.E.2d 845.

The plaintiff's intestate, being the owner of the car, did not occupy the ordinarily favored position of a guest passenger. In 5A Am.Jur., Automobiles and Highway Traffic, section 578, page 587, et seq., it is said: "An inference may readily be drawn, from the fact of the owner's presence, that the automobile was being driven by his agent or that he had some control over it, so as to render the owner liable for the driver's negligence."

The evidence of the plaintiff and the defendant clearly points out that the plaintiff's intestate was the instigator and planner of the trip; that he sat at all times next to the driver of the car and repeatedly "stomped" his foot on the driver's foot and pushed down the accelerator; that he insisted over and over again through the night that the driver go faster and faster. This evidence by the defendant's witnesses is not in conflict with the testimony of the plaintiff's witnesses, but is in accord with it. There is a conflict in the evidence as to whether or not the plaintiff's intestate or the defendant Runnels was driving the car at the time of the collision. This is not material on the present question. Plaintiff would not be entitled to recover against the defendant on any aspect of the present case if at the time of the accident her intestate was driving the car. Therefore, the question posed is bottomed on whether or not the plaintiff is entitled to recover on the facts revealed on the record, conceding that the defendant was driving the car at the time of the accident.

The plaintiff is relying upon the case of Litaker v. Bost, 247 N.C. 298, 101 S.E.2d 31, 36. In that case no one contended that Litaker owner the car in which they were riding, or had any control over it. Moreover, there was evidence that Litaker was drunk at the time when the race was planned (just prior to the accident). This Court said: "Whether Litaker was contributorily negligent in riding in the Chrysler when driven by either Stewart or Watson Bost would depend in last analysis on whether he knew what was going on and so consciously committed himself to the assumption of the risk." We concluded that the issue with respect to contributory negligence was properly submitted to the jury. See Bell v. Maxwell, 246 N.C. 257, 98 S.E.2d 33.

We think that plaintiff's evidence and the defendant's evidence, not in conflict therewith, supports the inference that both the defendant Runnels and the plaintiff's intestate at the time of the collision were under the influence of an intoxicating beverage to such an extent that neither one was competent to operate an automobile on a public highway. However, there is no evidence to the effect that plaintiff's intestate was too drunk to know what was going on. State v. Gibbs, 227 N.C. 677, 44 S.E.2d 201, 202.

While the last cited case involved a criminal prosecution, it lays down a principle with respect to intoxication that is applicable in the present case. In the Gibbs case, one Blake Styles was apprehended by patrolmen while operating a truck on a public highway. He was at the time "highly intoxicated." The owner of the truck was present, riding with Styles at the time. He was also "in a ``drunk condition.'" "The Court said: "Defendant owned the truck and was present, riding thereon as a passenger, while it was being operated by Styles who was then in an intoxicated condition. He, as owner, nothing else appearing, had the right of control and could, at will, permit or forbid the use of the truck by another. He and his companion had traveled more than 30 or 40 miles and at the time had liquor on the truck. Sufficient time had elapsed for him to discover Styles' condition and forbid his operation of the vehicle.

"While there is testimony tending to show the defendant was intoxicated there is no evidence to the effect he was too drunk to be conscious of what was going on * * *; or that defendant had surrendered or relinquished his right of control. * * *

"When an owner places his motor vehicle in the hands of an intoxicated driver, sits by his side, and permits him, without protest, to operate the vehicle on a public highway, while in a state of intoxication, he is as guilty as the man at the wheel. Story v. United States, 57 App.D.C. 3, 16 F.2d 342, 53 A.L.R. 246, certiorari denied 274 U.S. 739, 47 S. Ct. 576, 71 L. Ed. 1318; 5 Blashfield's Cyclopedia of Automobile Law & Practice, Perm.Ed., § 2930, page 67; 9-10 Huddy Auto Law, 30, 51; 5 A.J., 912."

Kavanaugh v. Myers' Administratrix, Ky., 246 S.W.2d 451, 453, supports the above view. In that case, the plaintiff's intestate was killed in a collision while riding in a car operated by the defendant Michael Kavanaugh, which car belonged to Kavanaugh's father. There was evidence to the effect that plaintiff's intestate, Kenneth Myers, and Kavanaugh, had been driving around and drinking intoxicating beverages for some time before the fatal accident. Plaintiff recovered in the lower court; on appeal, the Kentucky Court of Appeals said: "It is well settled in this jurisdiction that a guest riding in an automobile with knowledge that the driver is so intoxicated as to cause him to be careless or indifferent to his own safety or that of others, or incompetent to operate the car properly, is guilty of contributory negligence as a matter of law and assumes the risk incident to the operation of the car by a driver in that condition. (Citations omitted.) In W. F. Robinson & Son v. Jones, 254 Ky. 637, 72 S.W.2d 16, 19, we made this statement on the subject of drinking while driving: ``It is known of all men that the drinking of intoxicating liquor, though it be not done to the extent of actual intoxication, begets a spirit of recklessness, and is responsible for numerous accidents.' * * * The evidence is overwhelming that decedent was riding in a car knowing full well that the driver was drinking. More than that, Myers drank with young Kavanaugh and both drank to the extent that they could feel the effects of their liquor. * * * Each not only participated in every act performed by the other but Myers either urged or approved the actions of Michael that brought about the accident. It is obvious that the drinking cannot be separated from the cause of the wreck. Under the circumstances Myers was guilty of contributory negligence which precludes recovery of damages for his death." See Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32, 47 A.L.R. 323; 5A Am.Jur., Automobiles and Highway Traffic, section 792, page 739.

Whether a motion for judgment as of nonsuit should be sustained on the ground that the plaintiff is guilty of contributory negligence as a matter of law, presents in many cases a very difficult question. However, the decision on such motion must be made in light of the facts in each particular case. When the defendant's motion is so considered on the record before us, we hold that the plaintiff's intestate was guilty of contributory negligence which precludes recovery of damages for his death.

Reversed.

PARKER, J., not sitting.