Baird v. Baird

• Decision Date: 15 December 1943
• Docket Number: 665.
• Parties: BAIRD v. BAIRD et al. (two cases).
• Court: North Carolina Supreme Court

28 S.E.2d 225

223 N.C. 730

BAIRD v. BAIRD et al. (two cases).

No. 665.

Supreme Court of North Carolina

December 15, 1943

Civil actions for damages for personal injuries, consolidated for trial by consent.

The plaintiffs are the sister and brother of the defendant, Maria Reid Baird (the driver of the automobile at the time of the accident), and the daughter and son of the defendant, Mrs. C A. Baird, the owner of the automobile.

On August 15, 1941, plaintiff, Mary Watkins Baird, and defendants went from New York to East Orange, N. J., where they were joined by the plaintiff, Campbell A. Baird, Jr. There Mrs. Baird got her automobile, left in East Orange some days before, and invited plaintiffs and Maria Reid Baird to accomapny her on an automobile trip to Niagara Falls, New York. They left East Orange late in the afternoon with the male plaintiff driving. He drove until one or two o'clock A. M., when they stopped for 'supper.' After eating, the trip was resumed with the feme plaintiff at the wheel. A blister on her foot interfered with her operation of the machine. So, shortly after leaving Painted Post, the defendant, Maria Reid Baird, relieved her and drove (approximately 2 1/2 hours) until the accident happened about 5:30 A. M.

The automobile ran partly off the road and into a telephone pole with such force as to cause considerable damage to the automobile. Each plaintiff suffered certain personal injuries. The automobile left the road, a four-lane highway at an angle, and when it stopped it was not entirely off the hard surface. At the time, the defendant, Mrs. Baird, asked Maria Reid Baird what happened, and she replied: 'I guess I went to sleep,' or 'I went to sleep.' Both plaintiffs were asleep in the car for some time prior to and at the time of the accident. Some twenty or thirty minutes before the accident plaintiff, Mary Watkins Baird, woke up and asked the driver if she was sleepy, and she said that she was not.

In each case issues were submitted to and answered by the jury in favor of plaintiff. From judgments on the verdicts defendants appealed.

Sapp & Sapp, of Greensboro, for appellants.

Smith Wharton & Jordan, of Greensboro, for appellees.

BARNHILL Justice.

The accident occurred in the State of New York. Hence, in ascertaining the liability of defendants, the standard of conduct of the parties must be measured by the law of that State. Harrison v. Atlantic C. L. R. Co., 168 N.C. 382, 84 S.E. 519; Hale v. Hale, 219 N.C. 191, 13 S.E.2d 221; Russ v. Atlantic C. L. R. Co., 220 N.C. 715, 18 S.E.2d 130. 'The actionable quality of the defendant's conduct in inflicting injury upon the plaintiff must be determined by the law of the place where the injury was done.' Howard v. Howard, 200 N.C. 574, 158 S.E. 101, 102. The lex fori applies as to procedure only. Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11; Howard v. Howard, supra.

'Every owner of a motor vehicle * * * operated upon a public highway shall be liable and responsible for * * * injuries to person or property resulting from negligence in the operation of such motor vehicle * * * in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.' Sec. 59, N. Y. Vehicle and Traffic Law, Ch. 54. Laws 1929, sec. 59, as amended, ch. 71, Consol. Laws.

Maria Reid Baird was operating the automobile with the permission, if not at the request, of the owner. The owner, Mr. Baird, was present and had the legal right to control its operation. The negligent conduct, if any, of the driver, was imputable to her. The mere fact that she chose to fall asleep in the rear seat and refrained from directing its operation did not change her rights or limit her liability. Gochee v. Wagner, 257 N.Y. 344, 178 N.E. 553; Cherwien v. Geiter, 272 N.Y. 165, 5 N.E.2d 185.

It is true that the trip began in New Jersey, and the laws of New York have no extraterritorial application. Even so, the accident occurred in New York. So soon as the parties crossed the State line they proceeded under the law of that State.

If a driver of an automobile falls asleep while engaged in the operation of the car and as a result a wreck occurs, is he guilty of such negligence as will support a recovery for injuries sustained by a passenger. No New York decisions discussing or deciding this question have been called to our attention. We have discovered none. But in Nelson v. Nygren, 259 N.Y. 71, 181 N.E. 52, 54, the passenger went to sleep and while he was sleeping the accident happened. Upon being sued the owner pleaded the contributory negligence of the passenger. It was held that the issue was properly submitted to the jury. In discussing the question the court says: 'Who is to answer that question, the court or the jury? We believe it is for the jury to determine. The question of contributory negligence ordinarily is a question of fact. It is only when there is no dispute upon the facts and only one conclusion to be drawn therefrom that it may be decided as a question of law. To decide as a matter of law that, if a guest under circumstances like those in this case, should go to sleep in an automobile, he would he guilty of contributory negligence, would be to disregard realities and situations growing out of modern conditions.'

Whatever duty may rest upon a passenger, the duty to keep a careful lookout and to...