York v. York

Olakkson, J.

In tbis jurisdiction a wife bas tbe right to bring an action for actionable negligence against her husband. Roberts v. Roberts, 185 N. C., 566 (567); Shirley v. Ayers, 201 N. C., 51 (55); Jernigan v. Jernigan, 207 N. C., 831.

In Harper v. R. R., 211 N. C., 398 (402), citing many authorities, it is said: “It is well settled in tbis jurisdiction that negligence on tbe part of a driver of a car will not ordinarily be imputed to another occupant unless such other occupant is tbe owner of tbe car and bas some Lind of control over tbe driver. They must be engaged in a joint enterprise or joint venture. Automobile driver’s negligence is not, as a general rule, imputable to a passenger or guest.”

The defendant introduced no evidence. At tbe close of plaintiff’s evidence tbe defendant in tbe court below made a motion for judgment as in ease of nonsuit. C. S., 567. Tbe court below overruled tbe motion and in tbis we can see no error. Tbe evidence which makes for plaintiff’s claim, or tends to support her cause of action, is to be taken in its most favorable light for tbe plaintiff, and she is entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom.

It is alleged in tbe complaint, and we think tbe evidence sustains tbe allegations: “That defendant negligently and carelessly drove bis automobile at a high and dangerous speed; that be continued to negligently and carelessly drive bis automobile at a high and dangerous speed in the face of and into a fast approaching storm and rain and into a sharp curve in tbe road. That be negligently and carelessly failed to equip bis automobile with tires that were safe to drive, and did negligently drive bis automobile with tires that were unsafe.”

In Waller v. Hipp, 208 N. C., 117 (120), it is said: “There was evidence from which tbe jury could find that tbe skidding of tbe automobile was tbe result of tbe negligence of tbe defendant in driving an automobile with tires which be knew were worn out and slick, on a highway which was wet and slippery, at a rate of speed which, although not ordinarily unlawful under all tbe circumstances shown by tbe evidence. C. S., 2621 (45).” Butner v. Whitlow, 201 N. C., 749; Norfleet v. Hall, 204 N. C., 573; Taylor v. Rierson, 210 N. C., 185 (188-9).

Tbe defendant in bis answer denied negligence and set up the defense: “That the accident referred to was unforeseeable and unavoidable, but that if the defendant was in any manner negligent in the premises, which is again denied, then and in that event the plaintiff was also negligent in that she permitted, allowed, and acquiesced in the operation and driving of the said automobile in the manner in which it was driven at the time of said accident, with full knowledge of and opportunity of knowing the condition of said automobile, and that in making the said trip and in driving said automobile the defendant was acting in the joint interests and for the mutual benefit and pleasure of the plaintiff and the defendant; that if the defendant was negligent in the premises, which is specifically denied, then the said negligence of the plaintiff contributed to and was a proximate cause of said accident, which contributory negligence of the plaintiff is hereby pleaded as an additional defense to and in bar of this action.”

There was no sufficient evidence to show that plaintiff knew, or by the exercise of due care had reasonable ground to believe, that the tires were slick and worn out. Plaintiff testified, on cross-examination by defendant, “I don’t know anything about the condition the car was in.” There was no evidence of a joint enterprise or that plaintiff had any control over the car which defendant was driving. Charnock v. Refrigerating Co., 202 N. C., 105 (106). Plaintiff was a passenger or guest in the car. There was no sufficient evidence to submit an issue of contributory negligence to the jury. Mabel York testified, in part: “Mother told daddy to slow down and he didn’t.” We do not think any of these defenses can be sustained under the facts and circumstances of this case.

Mabel York was recalled. An “adjuster,” a Mr. Greene, on 2 July, 1935, shortly after the accident, had gone to her and gotten a statement from her. On cross-examination she testified, in part: “Q. You don’t now recall having said that Mr. York slowed down? Ans.: No, I don’t. Q. You don’t deny that you said it at that time, do you? Ans.: No. Q. Miss York, I wish you would please read to the jury the statement which you admit you signed and which bears the date of 2 July, 1935, relative to the time, place, and manner in which this accident occurred and the conversation between yourself and your mother at the time? Objection by plaintiff; sustained; exception. If permitted to answer the foregoing question the witness would have answered and read the statement as follows: (Statement set forth.) (By plaintiff’s counsel) : We repeat that we have no objection to defendant’s offering the statement in evidence. (By defendant’s counsel) : I repeat, plaintiff’s counsel says he has.no objection to our offering the statement, and I repeat that we have no objection to his offering writing of his witness signed by her. (By the court) : The court rules that either side may introduce the statement, and that it is apparent that neither side is going to. (Redirect examination.) I was at home alone when I signed it.” In the statement she says: “It was raining heavily in front of us and that father reduced his speed.” The statement would have shown exactly what was elicited on the prior cross-examination that she did not deny about putting in the statement about her father “slowed down.” This made the written statement immaterial.

In Lockhart’s N. C. Handbook of Evidence (2nd Ed.), part of see. 276, citing authorities, is the following: “That documents containing substantive evidence could not be introduced while cross-examining a witness when an opportunity was given to introduce the document at the proper time, that new substantive evidence could not thus be brought out if opportunity was given to introduce it at another time, and that impeaching evidence brought out on cross-examination must be confined to its impeaching effect and not be .used as substantive evidence.”

The defendant contends that certain remarks on the argument by-plaintiff’s attorney to the jury were improper and prejudicial. The record discloses: “No exception was taken at the trial by defendant, but in its case on appeal defendant excepts.” It is well settled that the exception must be entered at the time. C. S., 643; Borden v. Power Co., 174 N. C., 72 (73); Rawls v. Lupton, 193 N. C., 428 (431). “(By Mr. Royall): I was just referring to Mr. Greene. I think it is perfectly proper — ‘Gentlemen, they did not put on the man that took the statement. Didn’t put him on the stand.’ Defendant objects; objection overruled; defendant excepts.” The argument was perfectly legitimate, at least in the sound discretion of the court below. The “adjuster,” although not a party to the action in obtaining the statements and what it contained, was inquired into by defendant. The charge made as to the method of obtaining the statements and not refuted by him was a “pregnant circumstance.”

In criminal cases the defendant is competent, but not compellable to testify. N. C. Code, 1933 (Michie), sec. 1799. In civil cases the failure of the defendant to take the stand to testify as to facts peculiarly within his knowledge and directly affecting him is “a pregnant circumstance” for the jury’s consideration. Hudson v. Jordan, 108 N. C., 10 (12). As pointed out in Goodman v. Sapp, 102 N. C., 477, the earlier cases declared that “the mere fact that a party, plaintiff or defendant, did not testify in his own behalf was not the proper subject of comment,” but that casé held that this must be left ordinarily to the sound discretion of the trial judge. However since the Hudson case, supra, the principle of that case has been frequently approved. In Powell v. Strickland, 163 N. C., 394 (402), it is pointed out that the jury should presume nothing against him from the bare failure of a party in a civil action to testify, but “when he is called upon to explain, the case is different.” In In re Hinton, 180 N. C., at p. 212, Walker, J., declares: “We are at a loss to conceive why propounders did not take the witness stand and refute the personal charges made against them unless they knew them to be true and unanswerable, or felt that they could not overcome the evidence of their truth offered by the caveators, or did not wish to undergo the ordeal of a severe cross-examination, which might disclose to the jury how unfeelingly they had treated the caveators who, because of their helpless and hopeless condition, were entitled to their care and protection instead of being the victim of their cupidity. There can be no wonder that the verdict was against them. Evidence of this kind was competent for the jury to consider, for when one can easily disprove a charge by testimony within his control, and which he can then produce, and fails to do it, it is some proof that he cannot refute the charge.” The rule of the Hudson case, supra, has been repeatedly approved and followed in recent cases decided by this Court. See Walker v. Walker, 201 N. C., 183 (184); Puckett v. Dyer, 203 N. C., 684 (690); Maxwell v. Distributing Co., 204 N. C., 309 (316).

N. C. Code, supra, sec. 2621 (46), in part is as follows: “(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing, (b) Where no special hazard exists the following speeds shall be lawful, but any spéed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful: . . . (4) Forty-five miles per hour under’ other conditions.”

The court below charged: “Now, gentlemen of the jury, if the plaintiff shall have satisfied you by the greater weight of the evidence that the defendant was operating his car at a speed in excess of 45 miles an hour upon the occasion in question, the court instructs you that that is evidence from which you may, but are not required to, find that he was violating the law. If you shall not so find, then, gentlemen, that would not constitute negligence in so far as that feature of the case is concerned, but if you should so find, then the court instructs you that would constitute negligence per se.”

Under the facts and circumstances of this case we can see no prejudicial error in the charge. From the evidence, under the conditions then existing and the speed under the hazard existing, over 45 miles an hour is unlawful and therefore negligence per se.

In Albritton v. Hill, 190 N. C., 429 (430), we find: “This and other evidence which we need not set out in detail (C. S., 2616), tended to ' show a breach of more than one statute. A breach of either is negligence per sej the causal relation between the alleged negligence and the injury being, of course, a question for the jury. . . . (Citing authorities.) In reference to concurrent negligence we have held that where two proximate causes contribute to an injury the defendant is liable if his negligent act brought about one of such causes. Mangum v. R. R., 188 N. C., 689; Hinnant v. Power Co., 187 N. C., 288; White v. Realty Co., 182 N. C., 536; Wood v. Public Corporation, 174 N. C., 697; Harton v. Telephone Co., 141 N. C., 455.”

The objections and assignments of error as to the answers of certain physicians who gave their opinion as to plaintiff’s injuries cannot be sustained. Keith v. Gregg, 210 N. C., 802 (808).

There are numerous exceptions and assignments of error made on the trial and to the charge which cannot be sustained. We have examined defendant’s brief and additional authorities, but the law is well settled in this State in matters of this kind. On the whole record we find no prejudicial or reversible error. The charge given covered every aspect of the case and the law applicable to the facts, and complied with C. S., 564. We repeat, as said in Davis v. Long, 189 N. C., 129 (137): “The case is not complicated as to the law or facts. The jurors are presumed to be men of 'good moral character and sufficient intelligence.’ They could easily understand the law as applied to the facts.”

In the judgment of the court below we find

No error.