Jernigan v. Jernigan

• Decision Date: 27 February 1935
• Docket Number: 100.
• Citation: Jernigan v. Jernigan, 207 N.C. 831, 178 S.E. 587 (N.C. 1935)
• Parties: JERNIGAN v. JERNIGAN.
• Court: North Carolina Supreme Court

178 S.E. 587

207 N.C. 831

JERNIGAN v. JERNIGAN.

No. 100.

Supreme Court of North Carolina

February 27, 1935

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 wheel was the sole cause of the accident? A. Well, I pulled it off to the right, yes sir. The defendant objected to the above question and moved that the answer be stricken out; the motion was denied and defendant excepted."

We see nothing harmful in the...