Samuels v. Bowers, 677

• Decision Date: 24 May 1950
• Docket Number: No. 677,677
• Citation: 232 N.C. 149,59 S.E.2d 787
• Court: North Carolina Supreme Court
• Parties: SAMUELS, v. BOWERS.

Page 787

59 S.E.2d 787

232 N.C. 149

SAMUELS, v. BOWERS.

No. 677

Supreme Court of North Carolina.

May 24, 1950

Hubert E. Olive, Lexington, and W. H. Steed, Thomasville, for plaintiff-appellant.

Don A. Walser, Lexington, for defendant-appellee.

DEVIN, Justice.

That there was evidence of negligence on the part of the defendant proximately causing plaintiff's injury was not controverted, but the defendant contends that the nonsuit should be sustained on the ground of contributory negligence on the part of the plaintiff, for that the plaintiff failed to exercise due care and to take proper precaution for his own safety by adequately warning the defendant of the dangerous manner in which he was driving, or making effort to stop or leave the car.

The rule is well settled that involuntary nonsuit on the ground of the contributory negligence of the plaintiff may be allowed only when the plaintiff's evidence, considered in the light most favorable for him, establishes his own negligence as a proximate contributing cause of the injury so clearly that no other conclusion reasonably can be drawn therefrom. Collingwood v. Winston-Salem Southbound Ry. Co., N.C., 59 S.E.2d 584; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637.

Plaintiff's evidence tended to show that plaintiff accompanied defendant in defendant's half-ton pick-up truck on a business trip of defendant from Thomasville to Rockingham, a distance of some 80 miles. On the return trip it was misting rain and the road was wet, and the defendant was driving around 60 to 65 miles per hour. Half a mile beyond an intersection of highways the truck skidded when going around a curve and turned over, injuring plaintiff. Plaintiff testified he cautioned the defendant several times to reduce his speed, twice shortly before the accident, but defendant replied he had been driving 25 years and 'never hit anybody yet.' Plaintiff had known defendant 15 years and been on trips with him before. On this trip defendant drove 'pretty fast' all the way back, except when driving through towns or at intersections. Plaintiff cautioned him to reduce his speed on account of the condition of the road about 10 miles before the accident happened, and cautioned him 'at the crossroads beyond Troy'--told him he was driving too fast. Plaintiff says he also cautioned him at the intersection of highways 49 and 109. Plaintiff did not try to take over control or get out of the truck as it was defendant's truck, and that was plaintiff's only way of getting back home. They stopped only once and that was at the Uwharrie River bridge, a considerable distance from plaintiff's home. Neither plaintiff nor defendant had taken any intoxicating liquor. Plaintiff was an employed person, 53 years old, 5 feet 8 inches tall, and weighing 270 pounds.

There was no evidence that defendant was an inexperienced or incompetent driver, or that his driving on this occasion was reckless, or that he had been drinking. The speed limit fixed by statute in force at the time applicable to defendant's half-ton truck was 55 miles per hour, though weather conditions might require a lower speed. G.S. § 20-141.

The question of the contributory negligence of a guest passenger in an automobile has been considered by this court in a number of cases. In all of them except one it was held the question was one for the jury if there was sufficient evidence offered to require submission of an issue thereon.

In Nettles v. Rea, 200 N.C. 44, 156 S.E. 159, where the driver of an automobile was making 70 miles an hour on a mountain road and around curves in spite of passenger's protest, motion to nonsuit was denied, and no error was found in the judgment on verdict for plaintiff on issues of negligence and contributory negligence. In King v. Pope, 202 N.C. 554, 163 S.E. 447, 449, where plaintiff was a guest passenger in an automobile driven by defendant in reckless manner after protest, it was held the question of contributory negligence was one for the jury. There the court used this language: 'The defendant contends 'The Court should have held plaintiff negligent as a matter of law in not demanding and insisting that the defendant stop the automobile and permit him, the plaintiff, to get out of the same.' We cannot so hold. Under the facts and circumstances of this case, we think it was a question of fact for the jury to determine. ' In that case the court quoted with approval from Krause v. Hall, 195 Wis. 565, 217 N.W. 290, the following: 'Should the host persist in his reckless driving, the guest may ask to be let out of the car, but that he should do so under all circumstances has never been held his duty as a matter of law, so far as we are advised.'

In Norfleet v. Hall, 204 N.C. 573, 169 S.E. 143, the defendant was driving at excessive speed without protest from the passenger. No issue of contributory negligence was submitted, doubtless due to the circumstances of that case showing sudden acceleration of speed by the driver, and the judgment for plaintiff was affirmed, though two Justices dissented.

In Taylor v. Caudle, 210 N.C. 60, 185 S.E. 446, it was held the question of contributory negligence based on evidence that plaintiff's intestate entered the car knowing the reputation of the driver as an unsafe and reckless driver, was for the jury.

In York v. York, 212 N.C. 695, 194 S.E. 486, the evidence disclosed that the defendant drove at a high and dangerous speed in face of a fast approaching storm and rain and into a curve with resultant injury to plaintiff passenger who had made no protest. The trial court refused to submit an issue of contributory negligence, and this court found no error. Three Justices dissented on the ground that the issue of contributory negligence should have been submitted to the jury.

In Mason v. Johnston, 215 N.C. 95, 1 S.E.2d 379, the plaintiff was a guest passenger on a motorcycle driven at a high rate of speed without protest. This Court held the question of contributory negligence of the passenger was a question for the jury, and could not be so declared as a matter of law.

In Groome v. Davis, 215 N.C. 510, 2 S.E.2d 771, it was held the failure of a guest...