Blevins v. France

• Decision Date: 26 June 1956
• Docket Number: No. 608,608
• Citation: 93 S.E.2d 549,244 N.C. 334
• Court: North Carolina Supreme Court
• Parties: Rebecca M. BLEVINS, Administratrix of the Estate of William W. Blevins v. William H. G. FRANCE, National Association for Stock Car Auto Racing, Inc., James F. Chestnutt, Dixieland Speedways, Inc., and J. & W. Corporation.

Page 549

93 S.E.2d 549

244 N.C. 334

Rebecca M. BLEVINS, Administratrix of the Estate of William W. Blevins v. William H. G. FRANCE, National Association for Stock Car

Auto Racing, Inc., James F. Chestnutt, Dixieland

Speedways, Inc., and J. & W. Corporation.

No. 608

Supreme Court of North Carolina.

June 26, 1956

J. Dickson Phillips, Jr., Sanford, Phillips & Weaver, Fayetteville, for plaintiff, appellant.

Tally, Tally & Brewer, Fayetteville, and Long, Ridge, Harris & Walker, Graham, for defendants, appellees.

PARKER, Justice.

The plaintiff alleges in her complaint five acts of negligence. She alleges that the defendants were jointly, severally and concurrently negligent and careless in that they wilfully, wantonly and intentionally (1) failed to treat the unpaved portion of the track to hold down dust, and failed to provide a safe track on which said race could be run in reasonable safety, and (2) appointed an inexperienced man, well knowing him to be inexperienced, to control the race as starter. The plaintiff has offered no evidence at all to support the above two allegations as to negligence. The other three allegations as to acts of negligence are to the effect that the defendants started the race when they knew, or by the exercise of due care could have known, that the deceased Blevins was in a dangerous, exposed and helpless condition, and that they knew, or by the exercise of due care could have known, that he was apt to be killed, if the race was started.

The official program listed defendants France and Chestnutt as directors of the race. France engaged the starter of the race, and drove the pace car. Plaintiff's evidence taken in the light most favorable to her, as we are required to do on a motion for nonsuit, is sufficient to make out a case of actionable negligence against the defendants on the theory that all of them were engaged in the business of promoting, arranging and conducting the race and were guilty of concurrent negligence. Midkiff v. National Ass'n for Stock Car Auto Racing, 240 N.C. 470, 82 S.E.2d 417; Fairmont Union Joint Stock Agr. Ass'n v. Downey, 146 Ind. 503, 45 N.E. 696; North Manchester Tri County Agr. Association v. Wilcox, 4 Ind.App. 141, 30 N.E. 202.

However, considering the evidence in the same light, it is not sufficient to establish wilful or wanton injury so as to preclude the defense of contributory negligence. Brendle v. Spencer, 125 N.C. 474, 34 S.E. 634; Fry v. Southern Public Utilities Co., 183 N.C. 281, 111 S.E. 354; 38 Am.Jur., Negligence, sec. 178. This Court said in Foster v. Hyman, 197 N.C. 189, 148 S.E. 36, 37: 'An act is done willfully when it is done purposely and deliberately in violation of law (State v. Whitener, 93 N.C. 590; State v. Rowland Lumber Co., 153 N.C. 610, 69 S.E. 58), or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason. McKinney v. Patterson, supra [174 N.C. 483, 93 S.E. 967]. 'The true conception of wilful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law.' Thompson on Negligence (2 Ed.), § 20, quoted in Bailey v. North Carolina R. R. Co., 149 N.C. 169, 62 S.E. 912. An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. Everett v. Receivers, 121 N.C. 519, 27 S.E. 991; Bailey v. North Carolina R. R. Co., supra. A breach of duty may be wanton and wilful while the act is yet negligent; the idea of negligence is eliminated only when the injury or damage is intentional. Ballew v. Asherville & E. T. R. R. Co., 186 N.C. 704, 706, 120 S.E. 334.'

We are now confronted with the question of contributory negligence on the part of plaintiff's intestate. When the defendant pleads contributory negligence, and the plaintiff's evidence establishes such negligence so clearly that no other conclusion may be reasonably drawn therefrom, the defendant is entitled to have his motion for judgment of nonsuit sustained. Donlop v. Snyder, 234 N.C. 627, 68 S.E. 2d 316; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361.

Plaintiff's negligence to bar recovery need not be the sole proximate cause of injury or death. It suffices, if it contributes t to his injury or death as a proximate cause, or one of them. 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; Moore v. Boone, 231 N.C. 494, 57 S.E.2d 783.

This Court said in Mintz v. Town of Murphy, 235 N.C. 304, 314, 69 S.E.2d 849, 858: 'The law imposes upon a person sui juris the obligation to use ordinary care for his own protection, and the degree of such care should be commensurate with the danger to be avoided.'

Plaintiff's evidence shows plainly these facts: Her intestate, 24 years old, was a body man in charge of the body shop of N. W. Horne's Garage, and skilled sufficiently in such work to have made at it $7,000 the year before his death. He voluntarily participated the night of his death in the dangerous sport of automobile racing, hazardous to life and limb, as a contestant for the prize money offered by the promoters of the race. He had participated before in 7 or 8 such races, and in one his racing car turned over. He willingly took his part in such a race with about sixty other racing cars, and knew the dangers that inhered in it so far as they are obvious and necessary. The timorous may stay at home. The car he had on the track for the race had a rebuilt V-8 Mercury motor, which he had worked on all night prior to the night of his death. The motor was rebuilt so strong that the battery did not have sufficient voltage to start the motor. To start the motor the car had to be pushed off. Knowing this fact his car was pushed off and with about sixty other racing cars he began to follow France around the track in the pace car preliminary to the start of the race. Near the first bend his car stalled. The clear inference is that his rebuilt motor finished the night before was not properly functioning. A car pushed him off starting his motor again, and instead of driving off the track into a safety zone, he started to circle the track well knowing that the start of the race with about sixty cars was imminent. About the middle of the back stretch his car stalled and stopped again. He could have unsnapped his safety belt and the band on the car door, and have stepped out and reached a place of safety in a few seconds. He remained in his stalled car. With sixty racing cars the drivers in the cars behind the leaders could not see the stalled car until the leaders swerved around it. When the green flag dropped, the drivers gunned their motors, which made a loud noise, and the racing cars roared away. In their path was his stalled automobile, a hazard that he created after his car had stalled the first time and had been pushed off by driving it some distance on the track until it stalled again instead of driving onto a safety zone,...