Appeal
from Superior Court, Edgecombe County; Devin, Judge.
Action
by Ina E. Jernigan against Albert M. Jernigan. From the
judgment, the defendant appeals.
No
error.
In
wife's action against husband for injuries received in
accident which occurred while wife was driving automobile
instruction on issue of joint enterprise in the form
"were the plaintiff and defendant engaged in a joint
enterprise so as to bar the plaintiff's action as alleged
in answer" held not error.
This is
an action for actionable negligence brought by plaintiff
against defendant. The defendant, in his answer, denied
negligence and set up the defense of sudden emergency. joint
enterprise, and contributory negligence. The evidence on the
part of plaintiff was to the effect that she was the wife of
defendant and was injured in an accident on April 16, 1932
while traveling in defendant's car from Norfolk to
California. Defendant drove the car from Norfolk to Weldon
and asked the plaintiff to take the wheel and they headed
towards Rocky Mount.
The
plaintiff testified, in part: "The road between Enfield
and Whitakers passed over the railroad, the road being
elevated by an overhead bridge where it crosses over the
track. We reached the overhead bridge about 4 o'clock in
the afternoon. The weather was fair. The road was dry and in
good condition. The road was paved with cement to the bridge
and with tarvia over the overpass. I was driving about 30
miles per hour. I had driven a car for several years and had
never had an accident. Just before we got to
the bridge, there was a truck in front of me and I blew for
the truck and passed around it. I was leaving the cement part
of the road and entering upon the part paved with tarvia when
I blew my horn. I passed the truck and after passing it, I
was getting back on the right side of the road and my husband
grabbed the steering wheel and I don't remember anything
else. At and about the time I was passing the truck, I did
not see any other vehicles coming in the opposite direction.
I was about one-fourth up the incline when I passed the truck
and it was after that, my husband grabbed the wheel. When he
grabbed the wheel, the car went to the right and over the
embankment and I do not remember anything further. Before he
grabbed the wheel the car had not slipped over the pavement.
We were not meeting anybody, I was not nervous or frightened
and did not think I was in any danger. The embankment is
about eight feet above the surrounding country about
one-fourth of the way up where we passed the truck and about
twelve feet above the surrounding country about one-half way
up the incline where the car went over. * * * Just before my
husband grabbed the wheel, I was in the center of the road
and had passed the truck. I had started back to the right
hand side and had gotten in about the middle of the highway.
I do not remember anything further until I awoke in the
hospital the next morning. * * * My husband was, at the time
of the accident, a police officer of the City of Norfolk, and
had been for about fifteen years. I have no other income
except his salary and no property except property that he
gave me or property that we accumulated together. * * * We
had saved enough with what my daughter had given me, to take
a trip to California. * * * On our trip to California, we had
planned that I would drive a while and he would drive a
while. He had worked all night the night before the accident.
When we got to Weldon he said he was tired and sleepy and
wanted to take a nap and I took the wheel so he could sleep
and drive from Weldon to the over-head bridge where the
accident occurred. * * * As I was going around the truck my
car was headed to the left. I don't know when my husband
who was sitting beside me in the front seat, awoke but if he
awoke at that moment, I guess he looked right out into space
with the ground 12 feet or more below him. It was not at that
point that he took hold of the wheel. He took hold of the
steering wheel as I went to get back on the right side of the
road after going around the truck. * * * My husband took hold
of the steering wheel and tried to pull the car back into the
road. I was not in any danger. The car was not facing to the
left when he took hold of the wheel. It was facing straight
up the road and I was getting it back on the right side of
the road. I had gotten around the truck, then he took hold of
the steering wheel. * * * I do not know when my husband woke
up. He was asleep sometime before we got to the bridge and
the first thing I knew he had grabbed the wheel. He had not
spoken to me. I don't know what he thought or what he saw
or when he woke up. The first thing I knew he just grabbed
the wheel. * * * Before passing the truck I looked to see
whether there were any cars between me and the bridge and did
not see any cars coming."
Wyatt
Fountain, who was driving the truck about twenty miles an
hour, which plaintiff passed, testified, in part: "I
should say Mrs. Jernigan passed me about a fourth of the way
up the incline and the car made the leap from a point about
half way up the incline. There was no other traffic on the
road. It is about 500 feet from the beginning of the incline
to the bridge. At that time, there was no railing on the
road. The highway, including the shoulders, was about 30 feet
wide. An automobile is about 5 feet wide, and will take up
about 8 feet. When the car cut I stopped my truck and watched
to see what was going to take place. I was thunderstruck at
it making those turns and the car sailed off and landed on
all four wheels and went across the field and dropped in a
ditch on the side of the railroad. It looked like it was
going over but it did not have momentum enough and dropped
against the bank, its rear end standing up and its front end
in a ditch. * * * I did not see anything unusual about the
car passing me on the road just before the accident. After
she passed I did not see that it got off the pavement. It
went to the left and then back. I did not see anything
unusual before it began switching back and forth across the
road. There was plenty of room to pass and she passed me all
right."
In many
respects the defendant's testimony tended to corroborate
that of the plaintiff. He heard the horn blow, and saw the
road, the truck, and the bridge, and he did not think it was
a dangerous road, and his wife was in control of the car,
driving at a moderate rate of speed. "My wife and I have
talked about the accident very little in the last two years.
While we were talking about it, she said that if I had not
grabbed the wheel she would have righted the car up and the
accident would not have happened, or substantially that. * *
* I do not say now she failed to operate the automobile in a
careful and lawful manner, or that she failed to have it
under proper control."
The
issues submitted to the jury and their answers thereto are as
follows: ""(1.) Was the plaintiff injured by the
negligence of the defendant, as alleged in the complaint? A.
Yes. (2.) Were the plaintiff and defendant engaged in a joint
enterprise so as to bar the plaintiff's action as alleged
in the answer? A. No. (3.) Did the plaintiff by her own
negligence contribute to her injury as alleged in the answer?
A. No. (4.) What damages, if any, is the plaintiff entitled
to recover? A. $7,500.00."
The
defendant made numerous exceptions and assignments of error.
The material ones will be considered in the opinion.
Willcox,
Cooke & Willcox, of Norfolk, Va., and Thorp & Thorp, of Rocky
Mount, for appellant.
Battle & Winslow, of Rocky Mount, for appellee.
CLARKSON
Justice.
This
action has heretofore been before this court and a per curiam
opinion was filed September 19, 1934. This court reversed the
judgment of nonsuit, 175 S.E. 713, and said: "While the
defenses of joint enterprise, sudden emergency,
unconsciousness of the defendant, and contributory negligence
raise very interesting questions, we think that they should
have been submitted to the jury under proper instructions,
since we are of the opinion there was sufficient evidence of
the alleged negligence of the defendant to carry the case to
the jury."
At the
close of plaintiff's evidence and at the close of all the
evidence, the defendant made motions in the court below for
judgment, as in case of nonsuit. C. S. § 567. The court below
overruled these motions and in this we can see no error. This
court passed on the evidence in this case when it was here
before. There is no material difference in the evidence on
the former and this appeal. On this aspect, the matter is res
judicata. The defendant presents other questions for our
consideration. First. "Did the Court err in permitting
the defendant to testify that the taking hold of the wheel by
him was the sole cause of the accident?" We think not,
on this record.
On
cross-examination, the defendant testified: "Some while
after the accident, my wife told me that my grabbing the
wheel put the car out of control. To think about it now, I
don't see why she could not have straightened it up and I
say she could have avoided the accident if I had left the
wheel alone. If I had left the wheel alone, there was nothing
to have caused the accident. Q. So, as you see it now, your
grabbing the...
