Bell v. Maxwell, 245

• Decision Date: 22 May 1957
• Docket Number: No. 245,245
• Citation: 246 N.C. 257,98 S.E.2d 33
• Parties: Robert BELL v. Charles K. MAXWELL and James B. Hammond.
• Court: North Carolina Supreme Court

Page 33

98 S.E.2d 33

246 N.C. 257

Robert BELL v. Charles K. MAXWELL and James B. Hammond.

No. 245

Supreme Court of North Carolina.

May 22, 1957

Carswell & Justice and J. Edward Stukes, Charlotte, for plaintiff, appellant.

Carpenter & Webb, Charlotte, for defendants, appellees.

PARKER, Justice.

Plaintiff was severely injured by the overturning of a practically new Lincoln Capri automobile owned by the defendant James B. Hammond and driven by the defendant Charles K. Maxwell. The defendants filed a joint answer in which they admitted that at the time Maxwell was driving the automobile with the permission and at the request of Hammond, who was present in the automobile before and at the time it overturned.

Plaintiff's evidence tends to show these facts: After midnight on 13 September 1953 Fred Teeter, a police officer of the city of Charlotte, went to the intersection of Harris and Providence Roads within the city limits. He saw Hammond's Lincoln automobile lying on its side on the right hand side of Providence Road coming into the city. He testified: 'It was off the hardsurface down a bank, a ditch; the skidmarks with reference to the car were on the paved street, paved surface of Providence Road, and skidmarks in the grass as it came off of the road too, skidmarks scraping across the road and grass; the skidmarks were toward the city limits out of town; that would be east of where the automobile was lying. ' He saw plaintiff lying on his back unconscious out from the automobile.

Teeter talked with Maxwell going to the hospital and at the Police Station. In his opinion, Maxwell was not intoxicated. This is the substance of what Maxwell told him: They were all in Hammond's automobile and went out Providence Road, where there was some fast driving encouraged by Hammond. Zeke Johnson and plaintiff got out of the automobile on Providence Road a few miles beyond the city limits. He told Johnson and plaintiff to get back in the automobile, the horse playing or speeding was over, and they would go back into town to the Stork Drive-In or somewhere. Plaintiff got back in the automobile, Johnson did not. The automobile had been stopped twice before it overturned. The automobile had been stopped when Johnson got out. He was going 85 miles an hour at the time he first noticed danger which was 100 yards before the impact. At the time of the impact he was going 65 miles an hour. At the time the car overturned he was driving it, Hammond and plaintiff were in the front seat with him, and one Ligon on the back seat. On cross-examination Teeter said he found beer cans around the car.

Plaintiff testified that the last thing he remembered that night was leaving home around 8:30 p.m., and the next time he remembered anything was about three weeks later in the hospital. He and Maxwell had been at the University at the same time. Plaintiff graduated at the University of North Carolina in 1953, and at the time of his injuries was 22 years of age.

Defendants pleaded contributory negligence of the plaintiff as a defense, and in such defense alleged that Hammond's Lincoln automobile was being driven on Providence Road near the point of overturning at a speed in excess of 100 miles an hour, and was being driven at a speed in excess of 80 miles an hour at the time it overturned.

At the close of plaintiff's evidence the court denied a motion for judgment of nonsuit. Whereupon, the defendants called one witness, Zeke Johnson. His testimony tends to show the following facts: About 8:00 o'clock that night he, with Stan Ligon, went to the Stork Drive-In in his car. Plaintiff and Dave Allen joined him there, and later the defendants joined the party. He and plaintiff were drinking beer. He stayed at the Stork Drive-In one or two hours, and then went to the Panda Grille four or five miles from the Stork Drive-In. There he met again plaintiff and Allen and Ligon and the two defendants. At the Panda Grille he, plaintiff and Maxwell drank some beer. When the Panda Grille quit serving beer he left the Panda Grille in his car, and plaintiff left at the same time in Maxwell's car. He next saw plaintiff and Maxwell at the Stork Drive-In about midnight. He saw Maxwell's car at the Stork Drive-In. Plaintiff was driving it, and the muffler had been knocked loose. When they arrived, the Stork Drive-In was closed. He, plaintiff, Ligon and the two defendants left in Maxwell's car with plaintiff driving it. He didn't remember where they were going, but while riding the car ran off the curbing one time. They went to Maxwell's home, and changed cars. They left there in Hammond's 1953 Lincoln Capri with plaintiff driving, and went out Providence Road to the Ming Tree Restaurant. There Maxwell took over the driving of the Lincoln car. Plaintiff was on the front seat, Hammond on the front seat between plaintiff and Maxwell, and he and Ligon on the back seat. Maxwell drove through the park, through town into Queens Road, and came back to Providence Road. Maxwell drove through the intersection of Queens and Providence Roads within the city limits at a speed between 80 and 90 miles an hour. The car was stopped in front of the Myers Park Presbyterian Church. There plaintiff got out of the car, but got back in it. Maxwell then drove the car out on Providence Road a distance of 2 1/2 to 3 miles beyond the city limits at a speed of over 100 miles an hour. Maxwell then turned the car around and started back to the city. He argued with Maxwell to slow down and not drive fast. Maxwell did not slow down, though he did not know what speed Maxwell was driving. He asked plaintiff to grab the steering wheel and slug Maxwell. Plaintiff refused, saying they were going too fast and would surely have a wreck if they did anything like that. Johnson testified: 'I got Maxwell to stop by choking him. I got out of the car as it stopped. I got out of the car. The car, I think, was either at a standstill or barely moving but it was slow enough for me to get out. The car was going slow enough for me to get out.'

On cross-examination this in substance is his testimony: The Lincoln car belonged to Hammond. Plaintiff asked Maxwell to stop the car, and he did in front of Myers Park Presbyterian Church. Plaintiff got out, saying he was not going to ride with him at any such speed. Maxwell said he wouldn't drive fast anymore, and plaintiff got back in the car. Maxwell began to drive fast again. He, plaintiff and Ligon told Maxwell a number of times to slow down, but Hammond did not tell him to slow down.

This is in substance his testimony on redirect examination. When they stopped at the Ming Tree Restaurant, Hammond said if there was going to be any fast driving, he wanted Maxwell to do it. Maxwell said he would drive. Plaintiff said he wouldn't ride fast in the car. Maxwell said he would not do it, and all got in the car. When they left the Panda Grille the last time, he drove his car up behind the car Maxwell was driving, in which plaintiff was riding, and bumped it at a speed of around 70 miles an hour.

At the close of all the evidence the court allowed defendants' motion for judgment of nonsuit, and the plaintiff excepted and assigns this as error.

The evidence of the greatly excessive speed at which Maxwell was driving the Lincoln Capri automobile, which belonged to Hammond, in violation of the Speed Restrictions of G.S. § 20-141, and of reckless driving of this automobile by Maxwell in violation of G.S. § 20-140, and the evidence that Hammond was encouraging the fast driving, and the admissions in the joint answer that at the time Maxwell was driving Hammond's Lincoln automobile with the permission and at the request of Hammond, who was present in his automobile before and at the time it overturned, is sufficient to make out a case of actionable negligence against both defendants. The defendants in their brief make no contention that the evidence does not make out a case of actionable negligence against both of them. Their contention is that plaintiff was properly nonsuited by virtue of his contributory negligence.

Contribtory negligence implies or presupposes negligence on the part of the defendant. Garrenton v. Maryland, 243 N.C. 614, 91 S.E.2d 596.

The defendants have pleaded contributory negligence as a defense. The question presented is this: Does the plaintiff's own evidence establish the facts necessary to show contributory negligence on his part so clearly that no other conclusion may be reasonably drawn therefrom? If so, the judgment of nonsuit below should be affirmed, if not, reversed. Mallette v. Ideal Laundry & Dry Cleaners, Inc., 245 N.C. 652, 97 S.E.2d 245; Blevins v. France, 244 N.C. 334, 93 S.E.2d 549; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307, 310. On this question the parties join battle.

This Court said in Bundy v. Powell, supra: 'In ruling upon a motion for an involuntary judgment of nonsuit under the statute after all the evidence on both sides is in, the court may consider so much of the defendant's testimony as is favorable to the plaintiff or tends to clarify or explain evidence offered by the plaintiff not inconsistent therewith; but it must ignore that which tends to establish another and different state of facts or which tends to contradict or impeach the testimony presented by the plaintiff.'

'Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court. ' Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793, 794. If different inferences may be drawn from the evidence on the issue of contributory negligence, some favorable to plaintiff and others to the defendant, it is a case for the jury to determine. Gilreath v. Silverman, 245 N.C. 51, 95 S.E.2d 107. To sustain a nonsuit on the ground of contributory negligence, the plaintiff must have proved himself out of court. Barlow v. City Bus Lines, supra; Phillips v. Nessmith, 226 N.C. 173, 37 S.E.2d 178; Lincoln v. Atlantic Coast Line R. R....