Atwood v. Holland, 439

• Decision Date: 06 July 1966
• Docket Number: No. 439,439
• Citation: Atwood v. Holland, 148 S.E.2d 851, 267 N.C. 722 (N.C. 1966)
• Court: North Carolina Supreme Court
• Parties: Brenda ATWOOD, a Minor, by Her Next Friend James M. Hayes, Jr. v. Ronnie Scott HOLLAND.

Page 851

148 S.E.2d 851

267 N.C. 722

Brenda ATWOOD, a Minor, by Her Next Friend James M. Hayes, Jr. v.Ronnie Scott HOLLAND.

No. 439.

Supreme Court of North Carolina.

July 6, 1966.

Hatfield & Allman, by Roy G. Hall, Jr., Winston-Salem, for plaintiffappellant.

Deal, Hutchins & Minor, by John M. Minor and Richard Tyndall, Winston-Salem, for defendantappellee.

PARKER, Chief Justice.

Plaintiff assigns as error the entry of the judgment of compulsory nonsuit and a dismissal of the action entered at the close of plaintiff's evidence.

Defendant states in his brief: 'Assume sufficient evidence of negligence to go to the jury.What was the evidence as to contributory negligence?'

Brenda Atwood testified in her behalf in substance, except when quoted, as follows: On 9 February 1964she was 17 years old.About 9 p.m. on Saturday, 9 February 1964, defendant driving his automobile with a man in it came to where she was living at 106 North Sunset Drive in the city of Winston-Salem, and she left with him in his automobile to join some friends at The Gaslight, where they sell tap beer and pizzas and have a jukebox and dance.The Gaslight is on Fourth Street in Winston-Salem right across from Sears.When they arrived at The Gaslight, she, defendant, and the man with defendant went inside where defendant had a table reserved, and the three of them took a seat at the reserved table.Mary and Nancy Hall, friends of theirs, were seated at a table next to their table.She ordered and drank a small Budweiser beer in a can, and defendant ordered and drank a yard-long beer in a big, long glass.A yard-long beer in a glass is equal to three 12-ounce cans of beer.They danced.She ordered and drank another small Budweiser beer, and did not drink any more after that.Defendant drank three or four more yard-long beers.The man who came to her house with defendant and had been at their table left.Christine Young and a man with her joined them at their table.Christine Young and the man with her were drinking whisky, and Christine Young was drunk.Between 11:00 and 11:30 p.m. she and Christine Young left The Gaslight in defendant's automobile, with defendant driving.Defendant drove his automobile to Mary Hall's place on Academy Street.Mary Hall had company, and they did not go in.Defendant's driving from The Gaslight to Mary Hall's place 'was fine, his driving was all right.'Bennie Benefield got in defendant's automobile with them on Academy Street, which made four people in the automobile.Defendant then drove his automobile to Fourteenth Street, where defendant and Benfield got out, went upstairs in a house, and got two pints of whisky.Defendant's driving from Academy Street to Fourteenth Street was all right.Defendant drove from Fourteenth Street to Liberty Street, and went up it towards the airport.She told defendantshe wanted to go home, because they were getting ready to open the bottles of whisky.At that time they were on Liberty Street at Lowe's Hardware.Defendant stopped his automobile there to turn around.Defendant got mad, accused her of having a late date at her home, said he would take her home, mashed his gas pedal all the way to the floor, and 'took off' back up Liberty Street.She told him to slow down, but he did not until he got almost to the curve on Liberty Street.Defendant went into the curve sliding, and at that time 'he was going about 75 or 80, I guess.'When defendant started sliding on the right side of the street, she saw the headlights of an approaching automobile, which was right in front of The Ponderosa Pine.Then defendant cut back across the road, and his automobile hit a pole.She was knocked unconscious.Defendant's driving was at a normal rate of speed and fine before he got mad and pushed his gas pedal to the floor.During the trial it was stipulated that the speed limit at the time and place of the wreck was 35 miles an hour.

Defendant was driving his Chevrolet Corvette.Brenda Atwood testified on cross-examination: 'It is a small two-seated sports car.In that car there are two bucket seats, one for the driver and one for a passenger, and in between those two seats you have a hump built up on the floor, a console.* * * During the course of that ride all over the city of Winston-Salem on that night, the four of us were in that car all the time together.Christine Young was real drunk; she wasn't flopping over on me; she was leaning against the door; she did not fall over on me. * * * After defense counsel asked me those questions on that prior examination, my attorney Mr. Hall, who is associated with Mr. Hatfield and Mr. Allman, asked me questions.Mr. Hall asked me if Ronnie Holland appeared to be intoxicated when Christine and Holland and I left The Gaslight in his Corvette, and I said yes, that when we danced he'd step on my toes and, you know, would fall against me; that he was almost too tipsy to dance.That was my answer, and that is correct.He acted that way while we were on the dance floor.It was a real small dance floor and a lots of couples.When we got outside he didn't stagger or anything.I am not saying, now, that he was drunk inside but was not drunk outside.'She testified on recross-examination: 'I was sitting there squeezed in between Benfield on one side, on the passenger's side, and Ronnie Holland on the other side.I had my legs over to one side; I had them on the side Christine was sitting on, on my right leg.My legs and Christine's legs and Benfield's legs were all in one compartment over there.'

W. L. Brendle, a police officer in Winston-Salem, about 1:00 a.m. on Sunday, was called to the scene of an accident on Liberty Street.He testified as a witness for plaintiff in substance, except when quoted, as follows: At the scene of the accident he found a 1962 Chevrolet Corvette had skidded into a light pole.He determined from his investigation that defendant was the owner and driver of the vehicle and that Bennie Benfield, Christine Young, and Brenda Atwood were passengers in his automobile.He testified as follows: 'That Corvette is a sports car, specifically designed as a sports car; it has just two seats to it; the seats are bucket seats, each one designed for one person to sit in.The bucket seats in this Corvette are even lower than the bucket seats in the ordinary car; they are low down to the floor.When you sit in those bucket seats in the Corvette, your legs are almost sticking straight out in front of you; they sit low to the floorboard.This is a sports car, and it is designed to be right down to the ground.'At the City Hospitalhe talked to defendant, who was bleeding pretty badly about the mouth, and his legs or ankles were messed up so he could not walk.In talking to defendant at the hospital, he could not tell what his condition was with reference to being intoxicated, though he could smell the odor of some type of alcohol on his breath.

D. T. Poplin, a policeman in the city of Winston-Salem, was working off duty at The Ponderosa Pine.This place closed about 12:15 and he and the owner were inside.The owner said he would pay him at 1:00 a.m.He was...