Doss v. Sewell, 671
Citation | 257 N.C. 404,125 S.E.2d 899 |
Decision Date | 15 June 1962 |
Docket Number | No. 671,671 |
Court | North Carolina Supreme Court |
Parties | Charles Ray DOSS, by and through his Next Friend, Mattie Doss, v. Marjorie Case SEWELL and Douglas Doss. |
Jordan, Wright, Henson & Nichols, by Luke Wright, Greensboro, for defendants-appellants.
Gwyn & Gwyn, by Allen H. Gwyn, Jr., Reidsville, for plaintiff-appellee.
The defendants' first assignment of error is addressed to the court's refusal to grant their motion for nonsuit at the close of the plaintiff's evidence. The assignment requires us to determine whether the evidence and the legitimate inferences from it, together with admissions in the pleadings, are sufficient to support a finding the plaintiff's injuries resulted from the defendants' gross negligence.
The accident occurred in Virginia. Liability, or lack of it, must be determined according to the substantive law of that State. Morse v. Walker, 229 N.C. 778, 51 S.E.2d 496; Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82. The Virginia guest statute (Code, Sec. 8-646.1) provides:
'No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation and no personal representative of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the operation of such motor vehicl, unless such death or injury was caused or resulted from the gross negligence or willful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator.'
The Supreme Court of Appeals of Virginia has defined gross negligence and wilful and wanton disregard for safety in many cases, among them, Crabtree v. Dingus, 194 Va. 615, 74 S.E.2d 54: In 'Thomas v. Snow, 162 Va. 654, 174 S.E. 837 the court said: 'Bates v. Thompson, 200 Va. 501, 106 S.E.2d 728; Young v. Dyer, 161 Va. 434, 170 S.E. 737; Jones v. Massie, 158 Va. 121, 163 S.E. 63; Sibley v. Slayton, 193 Va. 470, 69 S.E.2d 466; Hale v. Hale, 219 N.C. 191, 13 S.E. 2d 221; Altman v. Aaronson, 231 Mass. 588, 121 N.E. 505, 4 A.L.R. 1185.
As the pleadings are cast in this action, we may eliminate the question of wilful and wanton disregard of safety. Gross negligence is alleged in the complaint and denied in the answer. Contributory negligence is not interposed as a defense. Consequently the finding of gross negligence is in itself sufficient to support the verdict. On the other hand, if contributory negligence had been alleged and found by the jury, the additional issue of wilful and wanton injury then would be material, but not otherwise. Consequently liability is fixed by the finding of gross negligence.
In this case the evidence disclosed the plaintiff, his older brother, Douglas Doss, and Michael Turner, all teen-age boys, were guests, or at least visitors, at the home of the defendant, Marjorie Case Sewell. Mrs. Sewell's son asked his mother for the use of the family automobile to take the boys including his younger brother, to a drivein theater near Reidsville. Mrs. Sewell gave the keys to Julius, who, in her presence, gave them to Douglas Doss. The five boys--Douglas Doss driving--left for the theater after Mrs. Sewell gave them instructions about the time for their return.
The drive-in was showing a picture the boys had previously seen. They drove to another theater near Leaksville. After ascertaining they did not have enough money for all to gain admission, they decided to go to another across the line in Virginia. On this stage of the journey the wreck occurred.
It was dark. The party approached the intersection from the south at a rate of speed between 95 and 100 miles per hour over a road, the surface of which was only 18-20 feet wide. The younger of the Sewell boys requested Douglas to slow down. The others, including the plaintiff, apparently encouraged the speed. However, a short distance south of the intersection protected by a stop sign, the driver began to reduce speed and entered the intersection at 60 or more miles per hour. The driver failed to see, or disrgarded, the directional sign 62 feet south of the intersection. He failed to see, or disregarded, the luminous stop sign at the end of the traffic island. He missed the paved portion of the crossing, skidded over the south lanes, across the grass plot, knocked down a post, jumped the drainage ditch in the grass median, skidded across the north lanes, and crashed into the bank. Was the driver guilty of gross negligence under Virginia Law? Such operation of a vehicle with five boys aboard would shock fair-minded men. At least there would be a difference of opinion.
In McDowell, by Gravatt v. Dye, 193 Va. 390, 69 S.E.2d 459, the Supreme Court of Appeals of Virginia said: ...
To continue reading
Request your trial-
Blue Cross & Blue Shield of N.J. v. Philip Morris
...right to recover from a tort-feasor for such items of expense is based on his obligation to furnish them."); Doss v. Sewell, 257 N.C. 404, 125 S.E.2d 899, 903 (N.C.1962) ("Necessary medical expense of an unemancipated infant is the responsibility of the father, if living, of the mother if h......
-
State v. Baldwin
...must ordinarily be brought to the attention of the court before verdict--otherwise they are deemed to have been waived. Doss v. Sewell, 257 N.C. 404, 125 S.E.2d 899; Peek v. Trust Co., 242 N.C. 1, 86 S.E.2d 745; 1 Strong's N.C. Index 2d, Appeal and Error § Defendant next contends the court ......
-
Shaw v. Lee, 665
...injuries were sustained; if no right of action exists there, the injured party has none which can be enforced elsewhere. Doss v. Sewell, 257 N.C. 404, 125 S.E.2d 899; Kizer v. Bowman, 256 N.C. 565, 124 S.E.2d 543; Knight v. Associated Transport, Inc., 255 N.C. 462, 122 S.E.2d 64; Nix v. Eng......
-
Bolkhir v. North Carolina State University
...this right by participating as guardian ad litem in a trial in which the minor is awarded medical expenses. See Doss v. Sewell, 257 N.C. 404, 410, 125 S.E.2d 899, 903 (1962); Pascal v. Transit Co. and Lambert v. Transit Co., 229 N.C. 435, 441-42, 50 S.E.2d 534, 538-39 (1948). By this waiver......