Wise v. Hollowell
Decision Date | 11 October 1933 |
Docket Number | 15. |
Parties | WISE v. HOLLOWELL. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Dare County; Barnhill, Judge.
Action by John P. Wise, administrator of Clara Wise, against Graham Hollowell. From a judgment for plaintiff, defendant appeals.
Partial new trial.
This is an action for the wrongful death of the plaintiff's intestate. The defendant owned a Chevrolet car in which on July 10, 1932, at 2:30 in the afternoon, he started with others on a trip from Nags Head to Ocean View, Va. In the front seat were the defendant, who drove the car, the defendant's wife, and John Hollowell, and in the rumble seat were Clara Wise, the deceased, and Ira Partridge. When the party reached the Ocean beach, the defendant, according to his own testimony, attained a speed of 50 or 55 miles an hour. Along the beach were ridges or hills described as camel backs; the sand between them was soft and the way was rough. When the car ran in the soft places, it gave the defendant trouble. He testified, "There were high places and low places--something like going on a loop-de-loop up and down." In reference to his operation of the car, after saying that he drove it in the usual and customary manner of driving on the beach, he remarked: He admitted that the deceased had requested him several times not to drive so fast, and said that his speed was between forty and forty-five miles just before the accident.
There was evidence for the plaintiff tending to show that the death occurred at about 4:30; that the car was running "right along the wash of the Ocean where the soil was sticky and the sand was soft" at the rate of 45 or 50 miles; that the deceased asked the defendant two or three times to reduce the speed; that the car was "jumping up and down," and those in the rumble seat were "bouncing pretty nearly out of the car all the time"; that the beach was steep, in consequence of which one side of the car was higher than the other; that the car approached the remains of a wrecked vessel lying on the beach, a part buried in the sand and a part exposed to view and that the defendant, in attempting to turn the car to the left, struck the wreck and caused the car to skid, overturn and kill the intestate.
Mrs Hollowell testified:
Referring to the accident, the defendant testified:
It was admitted that the plaintiff was a gratuitous passenger, and that the accident and her death occurred in the state of Virginia.
The two issues submitted to the jury were answered in favor of the plaintiff:
(1) Was the death of the plaintiff's intestate caused by the wanton or culpable negligence of the defendant?
(2) If so, what damage, if any, is the plaintiff entitled to recover?
Judgment for plaintiff; appeal by defendant.
Thomas Creekmore and Murray Allen, both of Raleigh, for appellant.
C. E. Bailey and M. B. Simpson, both of Elizabeth City, for appellee.
It is admitted that the accident and the death of the intestate occurred in the state of Virginia. The measure of the defendant's duty and the question of his liability for negligence must be determined by the law of that state, for, if the act complained of is insufficient to constitute a cause of action there, it is likewise insufficient here. If under the lex loci there is a right of action, comity permits it to be prosecuted in another jurisdiction unless public policy forbids. This is conceded. Minor on Conflict of Laws, 479,§ 194; Goodrich on Conflict of Laws, 199; Howard v. Howard, 200 N.C. 574, 158 S.E. 101; Hipps v. R. R., 177 N.C. 472, 99 S.E. 335; Harrison v. R. R., 168 N.C. 382, 84 S.E. 519; Harrill v. Ry. Co., 132 N.C. 655. 44 S.E. 109.
The deceased was riding gratuitously in the defendant's car for her own pleasure. With respect to liability for the death of a guest caused by the negligence of the driver of a motor vehicle under these circumstances, the Supreme Court of Appeals of Virginia has held that the plaintiff must establish a degree of negligence greater than might have been adequate had the deceased paid for her transportation. Specifically applying the principle, the court has used this language: Boggs v. Plybon, 157 Va. 30, 160 S.E. 77, 81.
This case, which was approved in Jones v. Massie, 158 Va 121, 163 S.E. 63, enunciates the rule that it is incumbent upon the plaintiff in the present action to establish culpable negligence; that is, to show that the defendant knowingly or wantonly...
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