Clodfelter v. Wells

• Citation: 195 S.E. 11,212 N.C. 823
• Decision Date: 02 February 1938
• Docket Number: 530.
• Parties: CLODFELTER v. WELLS.
• Court: United States State Supreme Court of North Carolina

195 S.E. 11

212 N.C. 823

CLODFELTER v. WELLS.

No. 530.

Supreme Court of North Carolina

February 2, 1938

Appeal from Superior Court, Mecklenburg County; Frank S. Hill Special Judge.

Action by Nora Clodfelter against Phillip Wells for damages for personal injuries allegedly caused by defendant's negligent operation of an automobile in which plaintiff was a passenger. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

CLARKSON J., dissenting in part.

Evidence that it had been raining at intervals, that pavement was wet and that wheels of automobile slipped sideways on pavement resulting in driver's inability to control movement of automobile, was insufficient to require submission of passenger's action against driver to jury for injuries sustained in the accident occurring in South Carolina, under doctrine of res ipsa loquitur. Code S.C.1932, § 5908.

This was an action for damages for a personal injury alleged to have been caused by the defendant's negligent operation of an automobile in which plaintiff was a passenger.

The plaintiff alleged in her complaint that the defendant drove the automobile, in which she and others were riding, off the highway, in the state of South Carolina, and caused it to overturn in a ditch, resulting in her injury, and that this was due to the negligence of the defendant, "in that while driving at an excessive rate of speed on a perfectly straight highway, in the daytime, and with no traffic or obstruction of any kind in front of him, he drove his car in such a reckless and negligent manner, without keeping a lookout to see that he kept it on the pavement, that said automobile ran off the hard-surface highway and turned completely over in the adjacent ditch."

The plaintiff further alleged that there was an agreement between the defendant and those riding in the automobile for the payment of the expenses of the trip.

The defendant denied all allegations of negligence.

The evidence offered by the plaintiff showed the material facts of the occurrence to be as follows:

One K. W. Selden testified that in March, 1935, he and plaintiff were employed by the Parks Cramer Company in Charlotte, N. C., and that he and his wife and the plaintiff desiring to go to Charleston, S. C., he made the following agreement with the defendant: "I entered into an agreement with the defendant to carry my party down to Charleston and back. The agreement was that Mrs. Selden and I were to furnish the lunch; Mr. Wells was to furnish the automobile, and we would divide the expense-the gas and oil." The defendant's sister was also in the party. They left Charlotte about 4 a. m., and the defendant said he had been out the night before and had only been in bed an hour and a half. This witness further testified the accident occurred about three miles south of Camden, S. C., and he described what happened in the following language: "As we passed through Camden we had run into a little shower, and we ran out of the shower and hit the concrete road, which was wet. I was watching the road and the speedometer, and all of a sudden the car started that way, to my right. I was sitting in the front seat with the driver. The car went to my right, then it cut across to the left, then cut across to the right, and went off the highway and turned over. I don't know how many times it turned over, but I thing it was one and a half times. We landed with the wheels in the air. The road was level and straight. My best recollection is that it was of the standard width. * * * When the car cut to the left the second time, he (defendant) made the remark, 'Keep steady,' or 'Keep your seats, I'll straighten out in a few minutes,' or something similar to that; just the exact words, I don't remember."

The plaintiff Nora Clodfelter testified as to the accident as follows: "I am the plaintiff in this action. I was in the party that Mr. Selden has been describing. I was riding in the rear seat with Mrs. Selden and Miss Wells. Mr. Selden was sitting right in front of me, in the front seat, beside Mr. Wells, the driver. I did not observe anything happen before the car got off the road. We were just talking, as usual, and the car began swerving, and it was just an instant until we went off the road, and I do not know that anything happened just in that time."

Plaintiff further testified that they were going on a pleasure trip to Charleston to see the Magnolia Gardens and spend the day there.

Mrs. K. W. Selden testified she was riding in the back seat of the car, on the left, and plaintiff on the right, with Miss Hazel Wells between them. "It happened so quickly-the car, just all of a sudden, started going first to one side and then to the other, without any warning. It went to the right, then to the left, and then to the right, and turned over. The car did not get off the hard-surface until it turned over. * * * The car suddenly started going this way, zigg-zagging first to the right and then to the left, and then to the right.

Q. And it seemed to be skidding? A. Yes. And the roads were wet. * * * I did not notice that the driver of the car had any difficulty in controlling it on the way down to where the accident happened."

At the conclusion of plaintiff's evidence, defendant's motion for judgment of nonsuit was allowed, and plaintiff appealed.

Cansler & Cansler, of Charlotte, for appellant.

Tillett, Tillett & Kennedy and H. B. Campbell, all of Charlotte, for appellee.

DEVIN Justice.

The plaintiff's action is grounded on negligence, with the burden imposed upon her of affirmatively proving the allegations of her complaint. It is apparent that she has failed to offer sufficient evidence to entitle her to have her case submitted to the jury, unless the fact of the accident itself affords some evidence of negligence, or is sufficient to require the submission of the case to the jury under the doctrine of res ipsa loquitur.

Neither of the allegations of negligence in the complaint was supported by any evidence. There was no evidence of excessive speed (York v. York, N.C., 194 S.E. 486, at this term), nor even of the rate of speed, though plaintiff's witness who was seated beside the driver testified he was looking at the speedometer. There was no evidence of failure to exercise due care in the operation of the car, or to keep a proper lookout. There was no other traffic, the road was straight, of standard width, paved. There was no defect in the automobile or its tires. It had rained at intervals and the road was wet. All the facts of the occurrence and of the conduct of the defendant were testified to by the plaintiff and two other witnesses who were with her in the car at the time. The suggestion that defendant had not had adequate sleep the previous night is met by plaintiff's evidence that he was apparently alert at the time of the accident and said before the car ran off the road, "Keep steady, I'll straighten out."

The accident occurred in the state of South Carolina, and therefore the question of defendant's liability for negligence must be determined by the law of that state. Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82. It is elementary that matters of substantive law are controlled by the law of the place, the lex loci, but that matters of procedure are governed by the law of the forum-the lex fori. Wigmore on Ev. § 5. Under this principle the methods by which the parties may prove the truth of their assertions, the production of evidence, as well as the rules for the submission of the evidence to the jury, are matters of procedure, and hence governed by the law of the forum. 5 R.C.L. § 136; 12 C.J. 485; 3 Beale Conflict of Laws § 377.1 et seq. So that whether the evidence offered was sufficient to require its submission to the jury under the doctrine of res ipsa loquitur was a matter to be determined in accordance with the law prevailing in this jurisdiction. Harrison v. R. R., 168 N.C. 382, 84 S.E. 519; 11 Am.Jur. § 203; 78 A.L.R. 883; 89 A.L.R. 1278.

The statute law of South Carolina relative to liability for injury to guests resulting from the operation of an automobile contains this provision: "No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such automobile, its owner or operator for injury, death or loss, in case of accident unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others." South Carolina Code 1932, § 5908.

The defendant calls attention to this statute, and contends that in any event the burden was on the plaintiff to show, in respect to a gratuitous...