Litaker v. Bost

• Decision Date: 11 December 1957
• Docket Number: No. 523,523
• Citation: Litaker v. Bost, 101 S.E.2d 31, 247 N.C. 298 (N.C. 1957)
• Parties: G. Fetz LITAKER, Administrator of the Estate of Billy Ray Litaker, Deceased v. Charles Franklin BOST, by his General Guardian, E. L. Bost, and Caleb Watson Bost, III
• Court: North Carolina Supreme Court

Page 31

101 S.E.2d 31

247 N.C. 298

G. Fetz LITAKER, Administrator of the Estate of Billy Ray Litaker, Deceased v.Charles Franklin BOST, by his GeneralGuardian, E. L. Bost and Caleb Watson Bost, III.

No. 523

Supreme Court of North Carolina

Dec. 11, 1957

Webster S. Medlin, Concord, for plaintiff, appellee.

Hartsell & Hartsell, Concord, for defendantCharles Franklin Bost, appellant.

BOBBITT, Justice.

As stated on oral argument, appellant seeks a reversal, not a new trial.His assignments of error relate (1) to the overruling of his motions for judgment of involuntary nonsuit, (2) to the refusal of the court to sign judgment on the verdict in his favor, (3) to the allowance after verdict of plaintiff's motion for leave to amend his complaint, and (4) to the entry of judgment on the verdict in plaintiff's favor.

There was plenary evidence to support a finding that Litaker's death was caused by the negligence of the driver of the Chrysler and that Charles Franklin Bost, the owner, seated therein, had control and direction of its operation.Indeed, although the jury found otherwise, plaintiff's evidence was sufficient to support a finding that, as originally alleged by plaintiff, Watson Bost was driving the Chrysler at the time of the wreck.For this reason, Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147, discussed below, has no bearing on the question of nonsuit.

Appellant's position as to nonsuit rests on his contention that the undisputed evidence, taken in the light most favorable to plaintiff, established the contributory negligence of Litaker so clearly that no other reasonable inference or conclusion could be drawn therefrom.Dennis v. City of Albemarle, 243 N.C. 221, 90 S.E.2d 532.

Only the testimony of Stewart, plaintiff's witness, and that of defendantWatson Bost, relate to what happened prior to 5:00 p. m., at Chubirko's Restaurant, the occasion when Charles Franklin Bost and his Chrysler are first referred to in the evidence.Their testimony tends to show that they and Litaker were together from about 1:00 p. m. until they parked at Chubirko's place about 5:00 p.m.; that each had a car; that they rode around from place to place, first in one car and then in another; and that, during this period, they drank six cans of beer and at least one pint of whiskey.

There is no evidence that, during this period, any car was operated in a negligent or unusual manner or that Litaker was put on notice of the driver's incompetency, except the testimony referred to in the next paragraph.

Watson Bost testified that he met Stewart and Litaker at Buddy's Grill about 1:00 p. m.; that they left on Highway 29A, he driving his car, and Stewart, with Litaker beside him, driving Litaker's car; that Stewart drove up beside him and challenged him to a 'drag race'; and that they raced for some distance on Highway 29A but did not get 'over sixty an hour.'On the other hand, Stewart testified positively that he and Litaker did not meet Watson Bost at Buddy's Grill about 1:00 p. m. and that there was no incident relating to a 'drag race' on Highway 29A.Hence, as to such incident, the testimony was in direct conflict.On motion for nonsuit, the conflict must be resolved in favor of plaintiff.Cozart v. Hudson, 239 N.C. 279, 78 S.E.2d 881.

There was no evidence that Litaker drove any car prior or subsequent to 5:00 p. m.

Conceding the evidence sufficient to support a finding that plaintiff's intestate was contributorily negligent in continuing to ride with Stewart and Watson Bost throughout the afternoon and up to 5:00 p. m., it is insufficient to establish contributory negligence in this respect as a matter of law.

There is evidence tending to show that Litaker, Stewart, Watson Bost and Charles Franklin Bost left Chubirko's place in the Chrysler on two occasions, first at 5:00 p. m. or shortly thereafter and again about 7:00 p. m.; that, on the first occasion, with Watson Bost driving, they went to Buddy's Grill where they drank 'the rest of the whiskey which we had with us,' and thereafter drove to a Mrs. Helton's where Stewart, Litaker and Watson Bost went in and bought another pint of whiskey; and that thereafter they returned to Chubirko's place and parked.

There is evidence tending to show that, after returning to Chubirko's place, Stewart and Litaker got in Stewart's Ford coupe; and that Stewart twice drove up and down the divided highway and after doing so drove back into Chubirko's place and parked his car.Concerning such incident, Watson Bost testified: 'Don (Stewart) got out of his car and came around to Bill's side and as Bill started to get out, he caught his foot on the running-board and he almost fell.'

According to Watson Bost, the Chrysler's final departure from Chubirko's place was under these circumstances.One Paul Moose came along in a pickup truck.He was challenged by Stewart to race the Chrysler.They were to race south on Highway 29, then trun off onto Highway 73 and go west.Stewart insisted on driving and did drive the Chrysler.The Moose truck started down the highway.The Chrysler passed it before it had reached the trun-off into Highway 73.The Chrysler proceeded west on Highway 73.Moose abandoned the race and continued south on Highway 29; but another car, a Pontiac, otherwise unidentified, traveling west on Highway 73, passed the Chrysler.The wreck of the Chrysler occurred shortly thereafter, that is, after the Chrysler had overtaken and passed the Pontiac.The testimony of Moose and Swaringen (who testified he was riding with Moose), witnesses for defendants, was to the effect that Stewart instigated the race and was driving the Chrysler when it left Chubirko's place.Also, their testimony further corroborates the testimony of Watson Bost as to what occurred until the Chrysler turned off into Highway 73.

Stewart testified that he had no recollection as to arranging for a race with Moose; that he did not drive the Chrysler when it left Chubirko's place; that Watson Bost was then driving the Chrysler; that he did not know who was driving the Chrysler after it entered Highway 73; that he could 'only come to spots, what I remember and what I don't remember'; and that on Highway 73 'about the top of the bill at Miss Munday's house Watson was driving.'Plaintiff's witness James testified that Watson Bost was driving the Chrysler on an occasion about 7:00 p. m. when he saw 'a truck leave at about the same time the Chrysler left.'

True, none of the evidence indicates that Litaker made any protest as to riding with Stewart or Watson Bost or as to the manner in which the Chrysler was operated.Conceding the evidence sufficient to support a jury finding that Litaker was aware of what was happening and hence was contributorily negligent in riding in the Chrysler when driven by Stewart or Watson Bost on the last and fatal trip, we cannot say that the undisputed evidence establishes this so clearly that no other reasonable inference or conclusion can be drawn therefrom.In this connection, attention is called to the testimony set out below.

Mrs. Brown, plaintiff's witness, testified that she knew Litaker; that she was in a car, parked at Chubirko's place, around 4:30 or 5:00 p.m., when a Ford car in which Litaker was riding drove up and parked; that the driver of this Ford car went over to a Chrysler car; that two men came from the Chrysler, 'woke Billy Ray up,' and helped him to the Chrysler where he(Litaker)'got on the back seat and laid down.'As to Billy Ray's condition before he was aroused and helped to the Chrysler, she testified: 'I just don't know whether Billy Ray was asleep or not but he was passed out.'Again: '* * * they took him by the arm and woke him up and when he got up he had on khaki pants.I don't know whether he had been drinking or not but they were wet.'

James, plaintiff's witness, testified that he was at Chubirko's place around 7:00 p.m. when the Chrysler, with the four said occupants, drove up and parked.He testified: 'All of the boys got out of the car but Billy Litaker.He was in the Chrysler and was in the right front seat, lying down.He did not move.'

The testimony of Mrs. Brown and James was offered by plaintiff in relation to the contributory negligence issue.Since the burden of proof on this issue was on defendants, appellant's contention that plaintiff had made no allegation corresponding to this evidence is without merit.

Whether Litaker was contributorily negligent in riding in the Chrysler when driven by either Stewart or Watson Bost would depend in last analysis on whether he knew what was going on and so consciously committed himself to the assumption of the risk.

The charge of the trial court was not included in the record on appeal.Hence, it is presumed that the jury was instructed correctly on this and every principle of law applicable to the facts.Hatcher v. Clayton, 242 N.C. 450, 88 S.E.2d 104.

The court was correct in overruling defendants' motion for judgment of involuntary nonsuit and in submitting the contributory negligence issue for determination by the jury.

Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162, cited by appellant, is readily distinguishable.There the testimony of plaintiff, the guest passenger, was to the effect that she knew the defendant driver habitually drove in a reckless manner and at a high rate of speed without keeping a proper lookout.

We come now to the interpretation of the verdict, the amendment of the complaint after verdict and the judgment entered in plaintiff's favor.

Here certain fundamentals must be kept in mind.'It is well settled that a verdict should be liberally and favorably construed with a view of sustaining it, if possible, and in ascertaining its meaning resort may be had to the pleadings, the evidence and the charge of the court.'Guy v. Gould, 202 N.C. 727, 164 S.E. 120, 121.Too, admissions of the parties, if any, 226 be considered.Jerninan v. Jernigan, 226...