Lawson v. Benton, 366

• Decision Date: 02 February 1968
• Docket Number: No. 366,366
• Parties: Arlee LAWSON, Administratrix of the Estate of Ben Lawson, Deceased v. Ernest Bradley BENTON.
• Court: North Carolina Supreme Court

Page 805

158 S.E.2d 805

272 N.C. 627

Arlee LAWSON, Administratrix of the Estate of Ben Lawson, Deceased v. Ernest Bradley BENTON.

No. 366.

Supreme Court of North Carolina.

Feb. 2, 1968.

Turner & Harrison, by Fred W. Harrison, Kinston, for defendant appellant.

Beech & Pollock, by H. E. Beech, Kinston, for plaintiff appellee.

PARKER, Chief Justice.

Defendant has one assignment of error reading as follows:

'That the Court erred in that the Court failed to declare and explain the law arising on the evidence given in this case as required by G.S. 1--180 in that the Court failed to charge the Jury as to the law arising upon the evidence given in this case at it relates to the defense of contributory negligence in Tort Actions based upon negligence.'

G.S. § 1--139 specifies: 'In all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon as a defense, it must be set up in the answer and proved on the trial.' In this jurisdiction a plea of contributory negligence is an affirmative defense, and when relied upon as a defense, it must be set up in the answer and proved on the trial. The first requirement is that the defendant must have specifically pleaded in his answer an act or omission of plaintiff constituting contributory negligence in law; and the second requirement is that the defendant must prove on the trial the act or omission of the plaintiff so pleaded. Allegation without proof and proof without allegation are equally unavailing to the defendant. Farmers Oil Co. v. Miller, 264 N.C. 101, 141 S.E.2d 41; Rodgers v. Thompson, 256 N.C. 265, 123 S.E.2d 785; Maynor v. Pressley, 256 N.C. 483, 124 S.E.2d 162; Murray v. Wyatt, 245 N.C. 123, 95 S.E.2d 541; Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326.

Plaintiff offered evidence tending to show the following facts: About 12:30 p.m. on 30 August 1964 defendant was driving his 1956 or 1957 Lincoln automobile in a westerly direction on U.S. Highway #70 about five miles east of the city limits of Kinston, William Fisher, James Fisher, Charlie Koonce, and plaintiff's intestate Ben Lawson were passengers in the automobile. There had been a heavy downpour of rain for about twenty minutes to half an hour. The tires on the back of the Lincoln automobile were slick and those on the front had some tread but were fairly worn. As he approached a long curve defendant drew up behind two cars in front of him. He was operating the Lincoln automobile at a speed of 60 or 70 miles an hour. After defendant had passed the second car in front of him which had slowed down a little to give him more room to pass, he cut rather abruptly in front of the automobile, whereupon the rear of the Lincoln automobile spun around in the direction of travel. It then left the highway on the right shoulder of the road and went into a drainage ditch, proceeded down the drainage ditch backward several hundred feet, hit a culvert in the road, and jumped into the air from six to eight feet. A door on the right side of the Lincoln automobile came open and someone fell out of the automobile. The car then continued through the air, fell on its right side, and slid for 50 or 60 feet.

A State Highway Patrolman, Bert Mercer, arrived at the scene about 1:20 p.m. The highway at the scene of the wreck was 22 feet wide and the shoulders on each side were 10 feet wide. Proceeding toward Kinston from this point, the highway curves in a long sweeping manner to the right, and visibility at that point is approximately 200 to 300 feet. The patrolman measured the distances involved in the accident. The distance from the edge of the pavement to the culvert was 222 feet, and from the culvert to the rear portion of the automobile where it came to rest was 69 feet. Mercer testified in substance on cross-examination: When a wrecker turned the Lincoln automobile over, its glove compartment came open; and he noticed therein a pint bottle containing clear liquid. He smelled the contents of this bottle, and in his opinion it was nontaxpaid whiskey. About an hour and a half after the accident, he saw defendant in the emergency room at Lenoir Memorial Hospital. Defendant at that time had a very strong odor of some intoxicant about him, and in Mercer's opinion he was under the infuence of an intoxicating beverage.

During the trial defendant stipulated that plaintiff's intestate died as a result of injuries received from the automobile accident herein involved.

Defendant offered evidence tending to show: On the morning of the wreck James Fisher, Durwood Fisher, Charles Koonce, plaintiff's intestate, and defendant went to Dover in defendant's Lincoln automobile. They went to a house on the other side of Dover. Defendant, plaintiff's intestate, and James Fisher went into the house, stayed approximately 25 minutes, came back out, and started back to Kinston. They did not take anything into the house, and they did not bring anything out of the house. Plaintiff's intestate suggested the trip to Dover. Defendant did not drive fast on the way to Dover. Defendant did not drive fast coming back from Dover until just before they reached this sweeping curve. As defendant was nearing the curve, plaintiff's intestate told him to 'mash it,' and the car increased its speed up to 110 miles an hour. Charles Koonce, a passenger in the automobile, glanced at the speedometer just before the automobile reached the curve. He got down on the floor. Charles Koonce also testified on cross-examination that he had a case then pending as a result of this collision, and in fact the jury was out right then considering his case. He further testified on redirect examination that after Ben Lawson said 'mash it' he (Koonce) told the driver to stop and let him out, but the driver did not stop.

Durwood Fisher, a witness for defendant and a passenger in the automobile, testified in substance: He saw plaintiff's intestate and defendant take a drink of some alcoholic beverage. Defendant got the beverage from under the seat of the car. Defendant drank some and plaintiff's intestate drank some. Then his brother drank some. He did not see anyone drink anything else that morning. After they took this drink of liquor, he heard plaintiff's intestate say to defendant 'mash it,' just before they got to the curve in the road. Defendant 'mashed it.' The car began 'running' and doing 110 miles an hour. Plaintiff's intestate did not ask to be let out of the automobile. After this, they passed two cars in the curve and then the Lincoln 'went to spinning around.' He got down in the seat and that is all he remembers until after the car had turned over. He got hurt in the accident and his claim against the defendant has been settled.

Defendant, testifying in his own behalf, admitted that he was operating the Lincoln on the occasion complained of. He does not remember why they went to Dover except that plaintiff's intestate had some business to talk with somebody there. He did have a drink of intoxicating beverage. The intoxicating liquor was in the automobile. He had it before he got out of the city limits of Dover. He testified: 'We were coming down the road and run up behind this car, I believe it was a station wagon and I started by it. I was going pretty fast. I saw that I had room to pass the second car, so I kicked it into overdrive, picked up speed a little bit; so I could go by and it was running up around 60 to 70 miles an hour.'

Defendant contends in his brief that he was entitled to an issue of contributory negligence and a charge on it, because plaintiff's evidence and his own shows that a bottle of nontaxpaid whiskey was found in the automobile after the collision, and that the patrolman saw defendant about an hour and a half after the accident in the hospital, and he was under the influence of liquor, and that riding with a driver who is under the influence of liquor has been held to be contributory negligence as a matter of law. This contention is untenable, for nowhere in the answer is there any reference to the defendant's operating the automobile under the influence of liquor or while drinking. Nor is there any intimation in the answer that if in fact defendant was operating the automobile under the influence of liquor plaintiff's intestate knew of it. There is no statement or reference in the complaint that defendant at the time had a drink or was operating his automobile while under the influence of liquor. In the absence of appropriate allegations on the subject of intoxicating liquor, the presiding judge was neither required nor permitted to leave to the jury the question as to whether the defendant proximately caused his automobile to overturn by reason of operating it under the influence of intoxicating liquor.

There is no evidence to support the allegations in the plea of contributory negligence that on the return trip to Kinston plaintiff's intestate suggested to the defendant that 'he try...