Greene v. Nichols, 358

• Court: North Carolina Supreme Court
• Writing for the Court: SHARP; HUSKINS; PARKER; HIGGINS
• Citation: Greene v. Nichols, 274 N.C. 18, 161 S.E.2d 521 (N.C. 1968)
• Decision Date: 14 June 1968
• Docket Number: No. 358,358
• Parties: Max C. GREENE, Administrator of the Estate of Maxine Greene Nichols, Deceased v. George NICHOLS, Administrator of the Estate of Thomas Lee Nichols, Deceased.

Page 521

161 S.E.2d 521

274 N.C. 18

Max C. GREENE, Administrator of the Estate of Maxine Greene Nichols, Deceased v. George NICHOLS, Administrator of the Estate of Thomas Lee Nichols, Deceased.

No. 358.

Supreme Court of North Carolina.

June 14, 1968.

L. H. Wall and A. R. Crisp, Lenoir, for plaintiff appellant.

Townsend & Todd, Lenoir, for defendant appellee.

SHARP, Justice.

In considering defendant's motion for nonsuit three questions arise: Was plaintiff's evidence sufficient to support a finding (1) that Nichols was the driver of the automobile in which plaintiff's intestate met her death; (2) if so, that he operated the vehicle negligently, in the manner alleged in the complaint, thereby causing the death of his intestate; (3) that her death resulted in a pecuniary loss to her estate.

With reference to the first question, the evidence tended to show: Just before the fatal accident Nichols, driving his automobile, left the home of his father-in-law. Wilson was in the back seat, and Maxine, who had no driver's license, was sitting in the front seat on the passenger side. Five minutes later and 3 1/2 miles away, when Vines came upon the wrecked automobile, Wilson and Maxine, both dead, were in the same positions in which they had begun the trip. Nichols was on the ground beside the open door on the left side of the car.

There is no presumption that the owner of an automobile who was in the vehicle at the time of a collision was the driver. Parker v. Wilson, 247 N.C. 47, 100 S.E.2d 258. However, direct evidence as to who was driving the automobile at the time it was wrecked is not required. The identity of the driver may be established by circumstantial evidence or by combination of direct and circumstantial evidence. King v. Bonardi, 267 N.C. 221, 148 S.E.2d 32; Drumwright v. Wood, 266 N.C. 198, 146 S.E.2d 1; Bridges v. Graham, 246 N.C. 371, 98 S.E.2d 492. Clearly, the jury could find from plaintiff's evidence that Nichols was operating his automobile at the time it left the highway and collided with the poplar tree. Barefoot v. Holmes, 267 N.C. 242, 147 S.E.2d 883; Yates v. Chappell, 263 N.C. 461, 139 S.E.2d 728; Pridgen v. Uzzell, 254 N.C. 292, 118 S.E.2d 755; Stegall v. Sledge, 247 N.C. 718, 102 S.E.2d 115; Bridges v. Graham, supra. The answer to the first question is YES.

The more difficult question is whether the physical facts at the scene of the collision provide sufficient circumstantial evidence to support plaintiff's allegations that Nichols' negligence as alleged in the complaint proximately caused the death of plaintiff's intestate. Direct evidence of negligence is not required; it may be inferred from the attendant facts and circumstances. '(I)f the facts proved establish the more reasonable probability that the defendant has been guilty of actionable negligence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence.' Etheridge v. Etheridge, 222 N.C. 616, 618, 24 S.E.2d 477, 479; Yates v. Chappell, supra.

Plaintiff's evidence discloses these facts: The night was clear; the road was dry. The speed limit was 55 MPH, but the road was very crooked and hilly with very sharp curves. A highway sign warned Nichols, who was traveling west, that he was approaching a sharp curve. Furthermore, it is a fair inference from the evidence that Nichols was familiar with the road. On that curve, after crossing the eastbound lane and the south shoulder, he left the highway to collide head-on with a poplar tree five feet from the pavement. The automobile left no marks on the pavement or the shoulder. After the collision, the car spun around and came to rest 15 feet from the edge of the road. The tree was severely damaged; the vehicle demolished. The two passengers were killed instantly; the driver died soon thereafter.

In cases where a guest passenger (or his personal representative) has sued to recover damages sustained when the defendant's car left the highway for an unknown cause, the adjudications of this Court on the question of nonsuit have not been consistent, although each opinion states the same principles which purportedly governed decision. See 44 N.C.L.Rev. 1039 (1966). Almost invariably there is included an avowal that in North Carolina the doctrine of Res ipsa loquitur is not applicable to automobile accidents.

In Yates v. Chappell, 263 N.C. 461, 139 S.E.2d 728, the plaintiff's intestate was killed when the automobile in which he was a passenger collided with a bridge abutment on the shoulder of the road and stopped there. The abutment was cracked and the car 'damaged all over.' Approaching the bridge the road was downhill and curving to a point 250 feet from the bridge, from which it was straight and level. The speed limit there was 35 MPH. The pavement was dry, and there was no other traffic. The car left no tire marks on the pavement or shoulder. In reversing a judgment of nonsuit, the Court said that the doctrine of Res ipsa loquitur did 'not apply in tort cases involving the operation of motor vehicles' but that from the foregoing facts the jury could infer that at the time of the accident the driver was operating the automobile without keeping a proper lookout, without exercising proper control and at a speed which was excessive under the circumstances, and that his conduct was the proximate cause of the intestate's death. The court pointed out that there was No evidence of any object or imperfection in the highway, of any mechanical failure of the car, or of any puncture or blowout of tires. Thus, the Absence of evidence of these possible causes was considered as bolstering the probability of driver-negligence.

In Whaley v. Marshburn, 262 N.C. 623, 138 S.E.2d 291, when the defendant-driver reached a curve to the left on a rural paved road as it approached a bridge over a creek, he failed to follow the curve, hit the shoulder, jumped the creek to the right of the bridge, and collided with a tree on the bank. This evidence was held sufficient to take the issue of the defendant's actionable negligence to the jury.

In Lane v. Dorney, the plaintiff's evidence tended to show: The driver was in good health, his automobile in good mechanical condition, and the highway was dry and free of defects. There was no other traffic on the road. Notwithstanding, in traveling downhill on a long sweeping curve to the left, the defendant's intestate failed to make the curve and ran off the road to the right. After leaving 22 feet of tire marks on the shoulder, the automobile hit a concrete bridge abutment, jumped a stream, and landed on its top completely demolished. Upon first consideration, a majority of this Court was of the opinion that the plaintiff had not made out a case because the doctrine of Res ipsa loquitur was not applicable to automobile mishaps. The decision was that the trial court's judgment of nonsuit should be sustained. Lane v. Dorney, 250 N.C. 15, 108 S.E.2d 55. The plaintiff's petition to rehear, however, was granted and the judgment of nonsuit reversed, although the Court still disavowed the applicability of Res ipsa loquitur. Lane v. Dorney, 252 N.C. 90, 113 S.E.2d 33.

Other cases holding that, without applying the doctrine of Res ipsa loquitur, the attendant circumstances and physical facts at the scene were sufficient to establish driver-negligence when the automobile left the highway are: Peoples Bank & Trust Co. v. Snowden, 267 N.C. 749, 148 S.E.2d 833; Barefoot v. Holmes, 267 N.C. 242, 147 S.E.2d 883; King v. Bonardi, 267 N.C. 221, 148 S.E.2d 32; Drumwright v. Wood, 266 N.C. 198, 146 S.E.2d 1; Rector v. Roberts, 264 N.C. 324, 141 S.E.2d 482; Pridgen v. Uzzell, 254 N.C. 292, 118 S.E.2d 755; Stegall v. Sledge, 247 N.C. 718, 102 S.E.2d 115; Bridges v. Graham, 246 N.C. 371, 98 S.E.2d 492. See also Randall v. Rogers, 262 N.C. 544, 138 S.E.2d 248.

The following cases held the evidence insufficient to establish driver-negligence:

In Ivey v. Rollins, 250 N.C. 89, 108 S.E.2d 63 (Petition to rehear denied, 251 N.C. 345, 111 S.E.2d 194), a 14-year-old boy, driving a car with sensitive power steering at 30--35 MPH on a straight, dry road on a clear day, suddenly veered to his right and collided head-on with a bridge abutment. There were no skid marks and no noise except the sound of the impact. The occupants of the car--the driver, his mother, father, 4-year-old brother and the family dog--died in the collision. The trial judge's judgment of nonsuit was affirmed. Thereafter the petition to rehear was denied on the ground that 'under our decisions, the doctrine of Res ipsa loquitur is not applicable in this case.' Ivey v. Rollins, 251 N.C. 345, 111 S.E.2d 194. It is noted that the opinions in Lane v. Dorney and Ivey v. Rollins were filed on the same day, 8 April 1959. The petition to rehear Ivey was denied 2 December 1959; the petition to rehear Lane was granted 2 March 1960.

In an attempt to distinguish Ivey v. Rollins from Lane v. Dorney, the Court said in Lane that in Ivey there was 'nothing from the inside of the car, or from the outside of the car for that matter, from which we may ascertain what occurred at the time of the accident.' Lane v. Dorney, 252 N.C. 90, 94, 113 S.E.2d 33, 36.

In Fuller v. Fuller, 253 N.C. 288, 116 S.E.2d 776, the defendant's intestate was operating the pickup truck on a straight, dry road in the daytime at a speed of 35--40 MPH. The truck gradually veered to the left, ran off the pavement and onto the shoulder for 75 feet before proceeding into a field about 2 feet below the highway. It continued in a straight line for about 150 feet and struck a cedar tree. The truck was demolished; the plaintiff, a passenger, was injured and the driver killed. In affirming the judgment of nonsuit upon the authority of Ivey v. Rollins, supra, the Court said: 'The cause of the accident rests in the realm of speculation and conjecture.' Id. at 289, 116 S.E.2d at 777.

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