Pearce v. Barham, 540
| Decision Date | 25 August 1967 |
| Docket Number | No. 540,540 |
| Parties | Marion Ruth PEARCE v. Beulah P. BARHAM, Administratrix of Calvin W. Barham, Deceased, and DollyBarham. |
| Court | North Carolina Supreme Court |
Everett & Creech, Raleigh, for plaintiff appellant.
Dupree, Weaver, Horton, Cockman & Alvis, Raleigh, for defendant appellees.
There was evidence which, when considered in the light most favorable to plaintiff, tends to show: On February 19, 1964, near midnight, Calvin W. Barham (Calvin), was driving his Ford car in a northeasterly direction along Rural Paved Road No. 2224. Plaintiff, seated to Calvin's right, and Dolly Barham (Dolly), seated to plaintiff's right, were passengers. As he approached Fowler's Crossroads, the intersection of No. 2224 with Rural Paved Road No. 2308, Calvin was driving in a drizzling rain, with slick tires, upgrade, at a speed of ninety miles an hour 'or better,' moving back and forth across the road; and, although confronted by the stop sign at that intersection, failed to stop or slow down, crossed the intersection at such speed and lost control. As a result, his car left the road and overturned in a field some 288 feet from where it left the road, killing the driver and injuring the passengers. There was evidence sufficient to support a finding that Calvin's conduct was both wilful and wanton.
In charging the jury with reference to the first (negligence) issue, the court referred to plaintiff's original specifications of Calvin's negligence and then to her later allegation that she was injured by his wilful and wanton negligence. The court then defined 'wilful negligence' and 'wanton negligence.' (Technically, wilful and wanton 'conduct' rather than 'negligence' would seem correct.) Thereupon the court charged as follows:
If the plaintiff has satisfied you from the evidence and by its greater weight that Calvin Barham 'was negligent Either in that he failed to use due care by failing to maintain a proper lookout in the operation of the Ford, for the safety of his passenger, the plaintiff, Or that he failed to keep his Ford under proper control, Or that he operated the Ford with improper equipment in that his tires were slick and without tread on a rainy, drizzly road at night, Or that he operated the Ford at a speed in excess of fifty-five miles per hour in a fifty-five mile per hour zone, Or that he operated the Ford wilfully and wantonly, purposely and deliberately at an excessive rate of speed, to wit, ninety miles per hour in a fifty-five mile per hour zone, and with a deliberate and wicked purpose to endanger the safety of his passenger, the plaintiff; I say if the plaintiff has proven Either or any of those things, and proven it by the greater weight of the evidence; and has further proven by the greater weight of the evidence the negligence of the defendant in Any one or more of these regards not only exists, but that such negligence was one of the proximate causes of the injury complained of, that is that it was one of the causes without which it never would have occurred; then it would be your duty to answer this first issue in the plaintiff's favor, that is 'Yes. " (Our italics.)
In view of the wording of the first issue and the court's instruction with reference thereto, the jury's answer, 'Yes,' provides no answer to the issue as to whether plaintiff was injured by the wilful or wanton conduct of Calvin. Had the additional issue tendered by plaintiff been submitted, the jury's answer thereto would have eliminated the present uncertainty as to the significance of the jury's answer to the first submitted issue. The court erred in refusing to submit this additional issue, and the failure to submit it caused or contributed to the present uncertainty as to the meaning of the jury's answer to the first issue. Under these circumstances, we deem it proper to assume, for present purposes, that the jury did in fact find from the evidence and by its greater weight that plaintiff's injuries were proximately caused by the wilful or wanton conduct of Calvin. We consider portions of the charge relating to the second (contributory negligence) issue in the light of this assumption.
Defendant administratrix, in pleading contributory negligence, alleged the ability of each of the three occupants of the car was appreciably affected on account of drinking some intoxicating beverage; that if Calvin was the driver, which she denied, plaintiff was negligent (1) in that she continued to ride in the car without protest or remonstrance in respect of the manner in which it was being operated and made no request that she be permitted to get out of the car, and (2) in that plaintiff 'engaged in a fight with defendant's intestate while he was trying to operate the automobile (if he was driving at the time) by grabbing, jerking and pulling at him and slapping him in the face while in a drunken rage, all of which was done in a manner which was calculated to and which in fact did cause the loss of control of the automobile and its consequent wrecking.'
With reference to the second (contributory negligence) issue, the court instructed the jury as follows: 'If the plaintiff, as a guest passenger, in the exercise of due and ordinary care, such as would be exercised by a reasonably prudent and cautious person, saw or should have seen that the driver, Calvin Barham, was conducting himself in a negligent manner, that is, that he was driving at an excessive and unlawful rate of speed and in excess of fifty-five miles per hour in a fifty-five mile per hour zone, or that he operated the Ford wilfully and wantonly, in excess of ninety miles per hour, or that he failed to keep his vehicle under proper control, or that he failed to keep a proper lookout for the safety of his passenger, and that she saw and observed these things, and that she then failed under the circumstances to do what a reasonably prudent and cautious passenger would have done, and that you find that a reasonably prudent and cautious passenger would have warned or cautioned or protested or attempted to persuade the driver from his negligent conduct and encouraged him to drive the vehicle in a careful and prudent manner, or that she failed to protest and had reasonable grounds and opportunity to protest and ask the driver to stop the vehicle to let her dismount and cease to be a passenger; and if you should find from the evidence and by its greater weight that the plaintiff failed to so warn or caution or persuade the defendant driver, and that such failure caused or contributed to the accident and the upset and collision in the field by the side of Rural Public Road 2224, and that it resulted in injury to the plaintiff, passenger, that then under those circumstances the plaintiff would be guilty of contributory negligence, which would bar her recovery from this defendant.' Plaintiff's exception No. 16 is directed to the foregoing instruction.
'Ordinarily, where willful or wanton conduct for which defendant is responsible is a proximate cause of the injuries complained of, contributory negligence does not bar recovery.' 65A C.J.S. Negligence § 131(a), p. 110. Accord, 38 Am.Jur., Negligence § 178, p. 854; Blevins v. France, 244 N.C. 334, 93 S.E.2d 549; Fry v. Utilities Co., 183 N.C. 281, 111 S.E. 354; Brendle v. R.R., 125 N.C. 474, 34 S.E. 634. In Brendle, Douglas, J., for the Court states: 'It is well settled that contributory negligence, even if admitted by the plaintiff, is no defense to willful or wanton injury.'
'While there is some authority to the contrary, it has been held that no recovery can be had for an injury willfully and wantonly inflicted, where willful or wanton conduct for which plaintiff is responsible contributed as a proximate cause thereof.' 65A C.J.S. Negligence § 131(a), p. 113. Accord, 38 Am.Jur., Negligence § 178, p. 856; 2 Restatement 2d, Torts § 503; Gulf Mobile & Ohio R. Co. v. Freund, 183 F.2d 1005 (8th Cir., 1950), 21 A.L.R.2d 729. In this connection, these facts are noted: Defendant administratrix, in pleading the contributory negligence of plaintiff, did not characterize her conduct as willful or wanton. The only alleged conduct of plaintiff that might be so characterized relates to Active interference by ...
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