Hooper v. Glenn

• Decision Date: 16 June 1949
• Docket Number: 743
• Citation: 53 S.E.2d 843,230 N.C. 571
• Parties: HOOPER v. GLENN.
• Court: North Carolina Supreme Court

53 S.E.2d 843

230 N.C. 571

HOOPER v. GLENN.

No. 743

Supreme Court of North Carolina

June 16, 1949

On February 15, 1947, the plaintiff, D. W. Hooper, was a guest in a motor truck which the defendant, Robert H. Glenn, was driving along a public highway in Forsyth County. The truck suddenly left the road and crashed against a nearby tree inflicting substantial personal injuries upon the plaintiff. The plaintiff sued the defendant for damages for such personal injuries, and the defendant answered, denying liability to plaintiff in the premises.

When viewed most strongly in his favor, the plaintiff's testimony tended to show that the defendant drove the truck at a speed of not less than fifty miles per hour along his left half of an unpaved public highway having a width of thirty feet; that the defendant met another automobile proceeding in the opposite direction 'on its extreme right-hand side of the highway,' i. e., the defendant's left-hand side of the highway; and that the defendant thereupon abruptly jerked the steering wheel of the truck to his right, left the highway, crashed against a tree standing some distance to the right of the highway, and injured the plaintiff, notwithstanding that at least two-thirds of the roadway was open for the free and unobstructed passage of the truck.

The defendant offered evidence, however, indicating that he operated the truck on his right half of the highway at a speed of about thirty-five miles per hour; that he met the other automobile proceeding in the opposite direction along his right half of the highway at a speed approximating seventy miles an hour; that both he and the plaintiff were placed in imminent danger of death or enormous bodily harm in a threatened head-on collision between the truck and the rapidly approaching automobile and that he thereupon drove the truck from the highway in a reasonable effort to extricate himself and the plaintiff from the impending peril which has arisen without fault on his part.

The court submitted these issues to the jury:

1. Was the plaintiff injured by the negligence of the defendant Robert H. Glenn, as alleged in the complaint?

2. What damages, if any, is plaintiff entitled to recover?

The jury answered the first issue 'Yes' and the second issue '$15,000.00.'

Judgment was entered on the verdict, and the defendant appealed assigning errors.

Higgins & McMichael, Winston-Salem, for plaintiff, appellee.

Deal & Hutchins, Winston-Salem, for defendant, appellant.

ERVIN Justice.

The defendant reserved an exception to the refusal of the trial judge to permit him to amend his answer so as to set up a new plea of contributory negligence in these words, namely 'The defendant, Robert H. Glenn denies that he had used or was under the influence of intoxicants at the time of the accident, but avers that if he was intoxicated and if he and the plaintiff, D. W. Hooper, had been drinking intoxicants together, and the use of intoxicants by defendant Glenn was one of the proximate causes of the accident resulting in injuries to the plaintiff, then the plaintiff himself was guilty of contributory negligence in that he used intoxicants with the defendant Glenn, that he knew that the defendant Glenn had been drinking intoxicants and was under the influence thereof, but nevertheless the plaintiff continued to ride in the truck...