Williams v. Boulerice, 36

• Decision Date: 26 August 1966
• Docket Number: No. 36,36
• Citation: 268 N.C. 62,149 S.E.2d 590
• Parties: Mary Gibbs WILLIAMS v. Joseph R. BOULERICE, Cecilia W. Boulerice, Robert E. Hare and William LeonHare.
• Court: North Carolina Supreme Court

Page 590

149 S.E.2d 590

268 N.C. 62

Mary Gibbs WILLIAMS v. Joseph R. BOULERICE, Cecilia W. Boulerice, Robert E. Hare and William LeonHare.

No. 36.

Supreme Court of North Carolina.

Aug. 26, 1966.

Russell E. Twiford, Elizabeth City, for plaintiff appellant.

Leroy, Wells & Shaw, by Dewey W. Wells, Elizabeth City, for defendants Hare, appellees.

John H. Hall, Elizabeth City, for defendants Boulerice, appellees.

PARKER, Chief Justice.

APPEAL AS TO DEFENDANTS BOULERICE

Plaintiff assigns as error the entry of judgment of compulsory nonsuit of her action against defendants Boulerice.

Plaintiff's evidence shows Cecilia Boulerice was faced with a sudden emergency. "One who is required to act in an emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made." Lamm v. Gardner, 250 N.C. 540, 108 S.E.2d 847; Lawing v. Landis, 256 N.C. 677, 124 S.E.2d 877; Simmons v. Rogers, 247 N.C. 340, 100 S.E.2d 849. Ordinarily, the factual determination as to reasonableness of a choice is a question for the jury. Rouse v. Jones, 254 N.C. 575, 119 S.E.2d 628; Lamm v. Gardner, supra; Simmons v. Rogers, supra; Hunter v. Bruton, 216 N.C. 540, 5 S.E.2d 719; Woods v. Freeman, 213 N.C. 314, 195 S.E. 812; Waller v. Hipp, 208 N.C. 117, 179 S.E. 428. The true and ultimate test of Cecilia Boulerice's operation of the automobile in the emergency is this: What would a reasonably prudent person have done in the light of all the surrounding facts and circumstances? Lamm v. Gardner, supra.

Defendant Cecilia Boulerice made two choices. Her first choice was to turn to the right to avoid the oncoming Ford driven by Leon Hare. She was then faced with a fire hydrant. Her second choice was to turn her car to the left onto the pavement of the street. Even if we concede that her choices up to this point were those that a person of ordinary care and prudence, similarly situated, would have made, the jury could find from plaintiff's evidence that a person of ordinary care and prudence, similarly situated, having returned to the paved street, would have taken action such as turning to the right, or applying the brakes to keep the automobile on the street and out of the ditch, and in failing to do so defendant Cecilia Boulerice's choice of conduct did not accord with what an ordinarily prudent person would or might have done under the same or similar circumstances.

Plaintiff's evidence, considered in the light most favorable to her, and giving her the benefit of every reasonable inference to be legitimately deduced therefrom, would permit a jury to find Cecilia Boulerice was negligent in the operation of her automobile and that such negligence was a proximate cause of plaintiff's injuries. Plaintiff's case against the defendants Boulerice should have been submitted to the jury and the court committed error in deciding the question as a matter of law. Lake v. Harris Express, Inc., 249 N.C. 410, 106 S.E.2d 518; McFalls v. Smith, 249 N.C. 123, 105 S.E.2d 297.

The case of Patterson v. Ritchie, 202 N.C. 725, 164 S.E. 117, relied upon by defendants Boulerice, is factually distinguishable. In that case the driver of the automobile in which plaintiff's intestate was riding as a guest on a State highway in the midst of The judgment of compulsory nonsuit in plaintiff's case against defendants Boulerice was improvidently entered, and is

heavy traffic was suddenly confronted by a situation caused by a truck approaching him from the opposite direction, and he was [268 N.C. 67] required to act quickly for the safety of himself and his guest. Under the circumstances shown by the evidence, the court held he was not negligent in swerving the automobile suddenly to his right, thus causing it to leave the hard surface and to run onto the shoulder of the highway. The collision occurred within a short distance with a post which was standing beside the highway. In the instant case, Cecilia Boulerice swerved to the right onto the shoulder, then turned back onto the street, and after returning back to the street, failed to apply her brakes and to keep the automobile in the street and out of the ditch.

Reversed.

APPEAL AS TO DEFENDANTS HARE

Plaintiff excepts to and assigns as error certain portions of the judge's charge to the jury.

After explaining the general principles of law applicable to the case and in the course of applying the law to the evidence, the court gave the following instruction relating to proximate cause:

'Her case is bottomed on the theory, and she has alleged and has offered evidece which she says and contends should satisfy you that her daughter, in attempting to avoid this car, ran off the road on the right, and then in attempting to get her car out of what has been described as a drain ditch on the right, she cut back to the left, her maneuvering, or her cut back to the left, as a result of that, she went across the road and in the ditch. Now, you--the burden is on Mrs....