Farfour v. Fahad
| Decision Date | 19 October 1938 |
| Docket Number | 237. |
| Citation | 199 S.E. 521,214 N.C. 281 |
| Parties | FARFOUR v. FAHAD et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; Luther Hamilton, Special Judge.
Action by Mrs. Camelia Farfour against K. Fahad and another to recover damages for injuries allegedly sustained through the negligence of the defendants while riding as a guest in an automobile. Judgment for plaintiff, and the defendants appeal.
Judgment reversed.
The plaintiff brought this action to recover damages for injuries which she alleges she sustained through the negligence of the defendants while riding as a guest of Fahad in a car driven by Zaytoun within the State of Virginia.
The evidence pertinent to this opinion is substantially to the following effect:
A party composed of Mrs. Farfour, the plaintiff, Mrs. Kanan H. Simon, and Father Zaytoun left Wilson, North Carolina about seven o'clock in the evening in a car driven by Zaytoun, intending to attend a funeral at Dover, New Hampshire. Fahad had asked Zaytoun to drive the car carrying the others as guests, and had arranged with Simon to go with the party, and "pay all the expenses". They arrived at a point near Alexandria, Va., about three o'clock in the morning, Zaytoun driving. At this point, just beyond a crossroad coming in from the right, there were two one-way roads, each about twenty feet wide, separated by a grass plot, which was surrounded by a concrete curbing from five to eight inches high. Each one-way road had a line marking the middle, dividing the road into two lanes. The car was going about 45 miles an hour, and, just beyond the intersecting road mentioned, entered the right hand one-way road, struck the curbing on the left hand side of this road, ran up on the grass plot, turned over, and injured the plaintiff.
H. Simon testified that he was on the trip in the front seat with Zaytoun, who was driving; that when they got to the point mentioned they did not see anything ahead of them except the "boulevard", and: "We hit the next one and the back wheel of the car hit the next curb and turned around and turned over. It was a pretty fair night. It was a one-way road. There was a little grass boulevard between the two one-way roads. There was a side road on our one-way road on the right side leading into it just before the collision. * * * We were traveling about 45 miles an hour. * * * It didn't skid. * * * After it hit the curbing, I looked at the road and where it had hit. It was a paved road. I seen oil that probably came out of the car. I didn't see any oil except that right at the car. * * * There were no cars meeting us, or ahead of us, just before we got to the place of the collision. The road was entirely clear. * * * In my conversation with him (Father Zaytoun) afterwards, he said he was tired; he said his eyes were kind of tired. It was three o'clock in the morning. I can't tell if he was asleep; I didn't see him asleep. That's what he said, that he was tired, his eyes tired. * * * Father Zaytoun had been driving all of the way; he had been driving very carefully and probably knew what he was doing.
* * * At the point of the second grass plot there was a little curbing around the grass. The front part of the car passed that curbing, but the back wheel hit the curbing. The back wheel of the car slid, or skidded, or did something to get into the curbing and it stopped immediately, went only just a few feet from that immediate point and turned around. After it turned around it turned over on its side."
On cross-examination:
Joe Hallow testified that he went to the scene of the collision some forty or fifty days afterwards and was shown the place. He testified that there was a black line dividing the two lanes of the one-way road which was twenty feet wide. He stated that Father Zaytoun told him his front wheel went over first and his back wheel got broken before the car turned over; that he asked Father Zaytoun as to whether he was asleep, and the latter said he
Mrs. Margaret Kanan testified that prior to the accident, Father Zaytoun was driving at a high rate of speed "and the first thing we knew we just hit this curbing". * * * That "the front wheels hit and then we went over the parkway, and then the left rear wheel hit the curbing, and that's when it broke down and caused the car to turn over on its side." Witness further testified that the lanes were about twenty feet wide, the black lines on the surface in the center; that the automobile did not slacken its speed on or before it hit the curbing and turned over, but it seemed like the car was going faster instead of slower after it struck.
On cross-examination, this witness stated the rate of speed was about 45 or 50 miles an hour.
The plaintiff offered in evidence the entire 1936 Motor Vehicle Code of the State of Virginia, and called special attention to the following provisions:
In addition to this, numerous opinions of the Supreme Court of Virginia, dealing with "guest cases", were introduced by plaintiff and by the defendants.
At the conclusion of the plaintiff's evidence, and again at the conclusion of all the evidence, the defendants moved for judgment as of nonsuit, which was denied.
The trial resulted in a verdict for the plaintiff, and defendants appealed.
Langston, Allen & Taylor, of Goldsboro, for appellants.
Ehringhaus, Royall, Gosney & Smith and P. B. Edmundson, all of Goldsboro, and Howard E. Manning, of Chapel Hill, for appellee.
Since the alleged negligent act or omission of duty, and the injury consequent thereupon, occurred in the State of Virginia, the liability of the defendants, if any, must be judged by the laws of that State. Rodwell v. Coach Co., 205 N.C 292, 295, 171 S.E. 100; Wise v. Hollowell, 205 N.C. 286, 289, 171 S.E. 82; Howard v. Howard, 200 N.C. 574, 158 S.E. 101. Under the Virginia law, a guest in an automobile may not recover for simple or ordinary negligence of the host, but only when the negligence has been gross. Margiotta v. Aycock, 162 Va. 557, 174 S.E. 831; Boggs v. Plybon, 157 Va. 30, 160 S.E. 77, 80; Jones v. Massie, 158 Va. 121, 163 S.E. 63. Admitting this, plaintiff argues that she has shown gross negligence in the case at bar; and that, furthermore, where there is negligence shown, it is for the jury alone, at least under the circumstances of this case, to say whether it is ordinary or gross, the difference being one of degree only, and the verdict...
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