Etheridge v. Norfolk Southern Ry. Co.

• Decision Date: 12 January 1970
• Docket Number: No. 691SC376,691SC376
• Citation: Etheridge v. Norfolk Southern Ry. Co., 171 S.E.2d 459, 7 N.C.App. 140 (N.C. App. 1970)
• Court: North Carolina Court of Appeals
• Parties: E. Ray ETHERIDGE, Ancillary Administrator of the Estate of George Ray Busby, Jr., deceased v. NORFOLK SOUTHERN RAILWAY COMPANY.

Page 459

171 S.E.2d 459

7 N.C.App. 140

E. Ray ETHERIDGE, AncillaryAdministrator of the Estate of George Ray Busby, Jr., deceased v.NORFOLK SOUTHERN RAILWAY COMPANY.

No. 691SC376.

Court of Appeals of North Carolina.

Jan. 12, 1970.

Certiorari Denied March 3, 1970.

E. Ray Etheridge, Elizabeth City, Morris H. Fine, Fine, Fine, Legum & Fine, and William N. Eason, Norfolk, Va., for plaintiffappellee.

J. Kenyon Wilson, Jr., and Hall & Hall by John H. Hall, Jr., Elizabeth City, for defendantappellant.

BRITT, Judge.

Although defendant raises no question regarding the sufficiency of plaintiff's evidence to make out a Prima facie case of actionable negligence, we deem it appropriate to say that the evidence of actionable negligence was sufficient to warrant submission of the first issue to the jury.

In the first question presented in its brief, defendant contends that the negligence of Gallamore was imputed to Busby and his personal representatives as a matter of law wnd that by reason thereof the trial court should have granted defendant's motion for nonsuit or should have granted defendant's request that the jury be peremptorily instructed to answer the second and third issues in the affirmative.

We do not think the trial court erred in submitted the second issue and refusing to give a peremptory instruction as to it.It is well established in this jurisdiction that a motion for judgment of nonsuit on the ground of contributory negligence will be granted only when plaintiff's own evidence establishes the facts necessary to show contributory negligence so clearly that no other conclusion can be reasonably drawn therefrom.Johnson v. Wayne Thompson, Inc., 250 N.C. 665, 110 S.E.2d 306;Williams v. Hall, 1 N.C.App. 508, 162 S.E.2d 84.The rule would apply in cases where it is alleged and shown that plaintiff is contributorily negligent and in cases where someone whose negligence is imputable to plaintiff is alleged and shown to be contributorily negligent.Furthermore, since the jury in the case at bar answered the second issue in favor of defendant, we perceive no prejudice to defendant.

We come now to a consideration of questions raised by defendant as to the third issue and particularly defendant's contention that it was entitled to a peremptory instruction in its favor on that issue.Specifically, two questions present themselves: (1) Does the doctrine of 'imputed negligence' bar recovery by the owner-occupant (or his estate) in an action against a negligent third party where the driver is found contributorily negligent, and (2) do the facts in this case show imputed negligence as a matter of law?A review of pertinent decisions and the evidence in this case impels an affirmative answer to both questions.

In Shoe v. Hood, 251 N.C. 719, 112 S.E.2d 543, in a well-written opinion by Moore, J., it is said:

'The owner-passenger of an automobile ordinarily has the right to control and direct its operation.So then, when he seeks to recover from a third party damages resulting from a collision of the vehicle with some other automobile or object, the negligence, if any, of the party who is operating the automobile with the owner-passenger's permission or at his request is, nothing else appearing, imputed to the owner-passenger.Dosher v. Hunt, 243 N.C. 247, 251, 90 S.E.2d 374;Harris v. Draper, 233 N.C. 221, 225, 63 S.E.2d 209.* * *

The rationale of the Harper decision(Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185) is that 'the owner of an automobile has the right to control and direct its operation * * * (and where) the owner possessed the right to control, that he did not exercise it is immaterial."

Plaintiff recognizes the legal principles set forth in Shoe v. Hood, Supra, but contends that the evidence presented in the instant case showed that Busby at the time of the collision had completely relinquished control of the automobile to Gallamore and thus brought himself within the exception to the rule.It therefore becomes appropriate for us to review the evidence bearing on this contention.

Evidence pertaining to the nature of the occasion and circumstances under which Gallamore was driving was given by plaintiff's witnesses Thornburg and Clark, who were two of the occupants of the car.Their testimony revealed the following: On Sunday, 28 August 1960, at about 12:30 p.m., Busby, driving his 1956Ford Victoria and accompanied by three other young men and two young women, left Norfolk and drove down into Currituck County, North Carolina.At that time, Gallamore was riding in the front seat on the extreme right and Janet Cox in the middle on the front seat; in the back seat, Clark was on the left, Thornburg on the right, and Carol Beck in the middle.Soon after they left Norfolk, they stopped at an unnamed place where Busby purchased 24 cans of beer which Clark and Thornburg helped pay for.Thereafter and prior to the collision, Busby, Clark and Thornburg drank all of the beer except for a few cans; neither Gallamore nor the girls drank any of the beer.Some ten minutes before the collision occurred at about 2:40 p.m., as they were riding on Highway 158 'just enjoying the country,' the girls asked Busby not to drive so fast for the reason that he had been drinking.Thereupon, Busby drove his car off to the right side of Highway 158 and 'relinquished control of the car' to Gallamore.From that point on Busby rode on the extreme right of the front seat and said nothing to Gallamore about how or where to drive.Gallamore proceeded to drive on Highway 158 for one or two miles and they came to the intersection of Highway 1148 where a sign indicated 1148 led to Norfolk.At Clark's suggestion, Gallamore turned right on 1148 and proceeded in the general direction of Norfolk for some two miles to Gregory where the collision occurred.

In North Carolina, negligence is imputed to the owner-occupant of an automobile according to the following test: 'Did the owner, under the circumstances disclosed, have the legal right to control the manner in which the automobile was being operated--was his relation to its operation such that he would have been responsible to a third party for the negligence of the driver?'Shoe v. Hood, Supra.

There is a strong argument that imputed negligence should be applied only for the purpose of holding the owner-occupant 'responsible to a third party for the negligence of the driver' rather than as a bar to recovery by the owner-occupant.In fact, the overwhelming number of decisions invoking the principle deal with Primary negligence rather than contributory negligence.SeeNash v. Seaboard Air Line R.R., 202 N.C. 30, 161 S.E. 857;Baird v. Baird, 223 N.C. 730, 28 S.E.2d 225;Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185;Dosher v. Hunt, 243 N.C. 247, 90 S.E.2d 374;Shoe v. Hood, Supra, and the cases therein cited.

Also, it is clear that the rule of imputed negligence Does not apply as between the owner-occupant and the driver in cases where the owner-occupant 'sues the driver for injuries resulting from the driver's negligence.'Strickland v. Hughes, 2 N.C.App. 395...