King v. Pope

• Decision Date: 06 April 1932
• Docket Number: 101.
• Citation: 163 S.E. 447,202 N.C. 554
• Parties: KING v. POPE.
• Court: North Carolina Supreme Court

163 S.E. 447

202 N.C. 554

KING v. POPE.

No. 101.

Supreme Court of North Carolina

April 6, 1932

Appeal from Superior Court, Wayne County; Cranmer, Judge.

Action by H. E. King against D. H. Pope.Judgment for the plaintiff and the defendant appeals.

No error.

This is an action for actionable negligence, brought by plaintiff against the defendant alleging damage.The defendant denied negligence and set up the plea of contributory negligence.

The plaintiff(Horace E. King) is a mechanical engineer, about 61 years old, and lives in Goldsboro, N.C. L. S. Hadley is a merchant and lives in Wilson, N.C. D. H. (Dave) Pope lives in Raleigh, N.C.The plaintiff, King, and Hadley were going to Winston-Salem to attend the fair and a banquet to be given by Mr. Reynolds.They were invited by Pope to go in his 77 Chrysler sedan.They arrived in Winston-Salem on Tuesday night, October 7, 1931, about dark, attended the banquet, and the next day went to the fair, and left there that evening Wednesday, October 8th, just before dark.Pope was at the wheel of the car, sitting beside him was Hadley, and plaintiff was sitting on the back seat.Plaintiff describes the wreck as follows: "The first recollection I got of approaching Hillsboro was when the tires gave me first warning when the car started to turn around.Before we got there he(Pope) was driving at a pretty good gait and I remonstrated with him, that I wouldn't take the curve around the corners so fast that a Chrysler was notoriously light behind and at the next corner he said 'You see that takes as good as any car you ever saw,' and I said 'I haven't ever seen one but what would turn around behind when you take a corner fast, and I don't like to take them so fast, we have got plenty of time,' and at Burlington I got after him again, and he said 'Why don't you drive?' and I said 'I don't know anything about a Chrysler and don't know the road, and it is your car and it would be safer for you to drive than me for I am off of my beat.'He was going around 60 the biggest part of the time, 55 or 60.The speed was plenty fast when that thing came around, when the tires squealed.The road was dry and when the tires started to hollering I looked up and saw the car was over the white line on the left hand side of the road and was still going; it wasn't all of the car over, but half or more was on the wrong side of the curve, showing the car was going on the outer side of the curve and the tires were hollering, 'murder.'He probably might have come to the curve on his side of the road, I don't say anything about that because I didn't have anything to call my attention to look until I heard the tires and when I heard the tires the car was going that way and was still going and the car was over the white line; I don't know how it hit.When I waked up I was in the Durham Hospital."

Plaintiff described the serious and permanent injuries he sustained; before then he was in good condition, had no physical infirmities."Hadn't taken a dose of medicine in 40 years and never sent for a doctor in my life for my own self."On cross-examination plaintiff testified, in part: "I cautioned him (Pope) about taking that car around the corner that he was going too fast; far as the reckless part of that is concerned I am not going to put that construction on it particularly.If I swore to that in my complaint, then I will swear to it now.He was driving that automobile in such manner that to any reasonable man the driving of it was reckless.There are places all along that road, filling stations and houses and villages and towns, but I don't think they would appeal to me to get out in the dark, 40 miles away from my car, when I was riding with a man that was supposed to carry me back; I don't think you would have gotten out."

L. E. Hadley testified, in part: "I recall after we reached the edge of Hillsboro.Mr. Pope was driving the car; Mr. King was sitting behind him and I was on the front seat.We were driving pretty fast.I glanced at the speedometer a good many times, and it was from 55 to 60, maybe as high as 65 miles an hour.Mr. Pope was talking about the race his horse won that day and was very enthusiastic about the horse and he turned his head two or three times to look at Mr. King and Mr. King said 'Keep your head to the front, I can hear you,' and I said something to Mr. Pope about driving so fast and gesticulating with his hand.I didn't know we struck the turn until the car began to turn over.When I saw I wasn't broken up I saw Mr. Pope.How he got out of the car I don't know, and finally I found Mr. King and began to shake him and he didn't answer, and finally he groaned, and the first thing he said was 'My legs are paralysed,' and I straightened him out, and by that time a crowd got there, they raised the car up and pulled Mr. King out the door on the under side and I crawled through the top door and got out that way.Mr. Pope, when I got out, was sitting in somebody's else's car just a few feet from where this car turned over.Somebody phoned for an ambulance and all three of us got in it and went to Durham to Watts Hospital.Mr. King was unconscious practically all the way and I thought possibly dead before he got there.*** I remember him telling him (Pope) that a Chrysler was notorious for being light behind and not taking turns, and Mr. Pope says, 'This car takes turns as good as any car, you watch it at the next turn.'I don't know whether that was the last turn or not.I knew Mr. King well before this time.As well as I know anyone.His condition before this time was as near perfect as any man I know.He had the use of all limbs, muscles and all faculties and was an exceptionally strong, active man.I have seen him work at the mill and he had muscles like a blacksmith.I saw his arm today and there had been considerable shrinkage."

There was evidence by several physicians and nurses as to the nature and extent of the injuries and suffering of the plaintiff.

The defendant offered no evidence.The plaintiff was a guest in defendant's automobile, sitting in the back seat.All the evidence was to the effect that defendant"was sober, in full possession of his faculties, and an experienced driver, was operating his motor vehicle along a road, with which he was thoroughly familiar."

The issues submitted to the jury, and their answers thereto, were as follows:

"1.Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint?Answer: Yes.

"2.Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer?Answer: No.

"3.In what amount, if any, is the plaintiff entitled to recover of the defendant?Answer: $8,500.00."

Judgment for plaintiff was rendered by the court below on the verdict.The defendant excepted to the judgment as signed, made numerous exceptions and assignments of error, and appealed to the Supreme Court.The material ones and necessary facts will be considered in the opinion.

Ruark & Ruark, of Raleigh, for appellant.

J. Faison Thomson, of Goldsboro, for appellee.

CLARKSON J.

At the close of plaintiff's evidence and at the close of all the evidence, the defendant in the court below made motions for judgment as in case of nonsuit.C. S. § 567.The court below overruled the motions and in this we can see no error.

All the evidence was to the effect that defendant had violated certain provisions of the Motor Vehicle Uniform Act, N.C. Code, 1931 Anno.(Michie)§ 2621 (45), in reference to reckless driving: Section 2621 (46), subds. a and b, restrictions as to speed;section 2621 (51) driving on right side of highway;sections 2621 (54),2621 (55).

The court below read to the jury the sections above of the Motor Vehicle Uniform Act, which were applicable to the facts in this case.The court defined "negligence,""proximate cause," and "contributory negligence," and gave the contentions on this issue as to negligence, and charged the jury: "If you find by the greater weight of the evidence that Mr. Pope was operating the car in violation of the laws enacted by the General Assembly for the...