York v. York

• Decision Date: 05 January 1938
• Docket Number: 452.
• Citation: 194 S.E. 486,212 N.C. 695
• Parties: YORK v. YORK.
• Court: North Carolina Supreme Court

194 S.E. 486

212 N.C. 695

YORK v. YORK.

No. 452.

Supreme Court of North Carolina

January 5, 1938

Appeal from Superior Court, Wake County; J. W. Pless, Jr., Judge.

Action by Mrs. Mabel A. York against C. V. York to recover damages for personal injuries caused by defendant's negligent operation of an automobile. Judgment for plaintiff, and defendant appeals.

No error.

A witness' written statement, showing exactly what she did not deny having put in such statement on prior cross-examination, was inadmissible in evidence as immaterial.

This is an action for actionable negligence brought by plaintiff against defendant to recover damages. The defendant denied negligence and set up the plea of contributory negligence. The plaintiff and defendant are husband and wife, have been married to each other for 34 years, and have five children.

The defendant had an engagement in Charlotte, N. C., on June 3 1935, about 12:30 p. m. to have a contract signed, and left Raleigh about 9 o'clock, about a half hour late, in his car taking the plaintiff, his wife, who was riding with him on the front seat, and their daughter Mabel, who was riding on the rear seat. The plaintiff testified, in part:

"It was cloudy later on and it was cloudy when we left Albemarle. It was not raining when we left Albemarle. I can't recall exactly at what place we first saw signs of rain after we left Albemarle. We saw the rain coming in front of us. I was able to tell that the rain was approaching us.

Q. At what speed was your husband driving his automobile at the time you were travelling from Albemarle and saw the rain approaching? Ans: I would say 55 or 60 miles an hour. The road curved a little to the left and then to the right and straightened out. * * *

Q. Have you got any estimate in your mind? Ans: The rain was only for such a minute, a shower, we must have been right near the curve or right at it when the rain struck us.

Q. Did your husband, when the rain struck you, slow up at any degree at all? Ans: No.

Q. I believe you say it was 55 or 60 miles an hour? Ans: Yes.

Q. And he did not slow up? Ans: No.

Q. Did the car go around the first curve to the left? Ans: It went partly around and then he tried to straighten-I thought we were going over that embankment-and he got it straightened and went over the embankment on the other side.

Q. You were in the midst of the first curve when what happened to the car? Ans: When it went to straighten out.

Q. After passing the first curve? Ans: Yes. I don't recall his slowing his car at all while we went around the first curve.

The car skidded when we were going around the first curve. When we got to the second curve, the car went over the embankment on the right. It first went to the left and then to the right. I would not know how close the car was to the curve when the rain struck. Mabel called attention to the rain coming. My husband could hear her. I couldn't say how long that was before reaching the curve. I don't recall my husband's making any comment at that time. When the car went off the road, the last thing I remember was hearing that horrible sound of the motor and the next thing was I was being pulled out of the car."

The plaintiff was permanently injured. Several physicians testified to this effect. The plaintiff's testimony, in substance, was corroborated by her daughter, Mabel York. Mabel York testified, in part:

"Q. State whether or not after you left Albemarle and before the injury there was any conversation between your mother and yourself on the one hand, and your father on the other?

Q. Was there a conversation? Ans: Yes.

Q. What was said? Ans: Mother told Daddy to slow down and he didn't."

P. A. Kelly testified, in part:

"Yes, I recall an occasion in that year, in December, 1933, when Mr. York purchased some tires for his Terraplane automobile. They were Kelly-Register tires, 6600 610. Yes, they were all four tires. The approximate mileage of the Terraplane automobile was 8,000 miles at the time that I put those tires on. I saw the car in October, 1934, ten months after I sold them. We sold the tires in December, 1933, and he had 13,000 miles on the Register tires then. He was driving on them at that time. At that time I was working at Rogers Tire Company.

Q. Did you have any conversation with Mr. York at that time about the tires? Ans: Well, this particular time Mr. York came in and filled up with gas and oil and also checked his tires and battery. In other words, checked the car and I called Mr. York's attention that his tires were getting slick-told him they were getting slick and I would like to sell him U.S. Royals.

Q. What was the condition of the tires? Ans: The fabric wasn't showing, but-That was in October, 1934. He had those tires in March, 1935. About every week Mr. York would come and have something done. He would leave the car and get it later, or his son would.

Q. Did you have any further conversation with him during that period about the condition of the tires? Ans: Yes, sir. He bought a battery from me in March, 1935, and I said, 'You still got those tires but you are almost to the fabric and I don't believe I would take any more chances.' He said, 'I don't know whether I like your tires, I will probably see you, but I can't buy the tires now.'

Q. You told Mr. York that you didn't believe you would take any more chances with the tires? What did he say? Ans: Well, he said, 'I know you are right, but I am not in a position to buy the tires now.' (Cross-examination) Yes, I made an examination of these tires. I checked them to see if the fabric was showing. The fabric wasn't showing but the tires were slick. I could stand and look at that tread and tell there was no non-skid on it. I can look at a tire and tell if it is slick, but I cannot tell if it is just down to the strip. Now, if it was gone through the fabric I can see it from standing on the side. I could tell they were slick and the non-skid was gone."

C. V. York, Jr., testified, in part:

"I was familiar with this automobile which was in this wreck, was turned over on June 3, 1935. Kelly-Springfield tires were on the car at the time it was brought back from the wreck. They were put on the car in January, 1934. They were purchased from the Carolina Service Corporation. Mr. Kelly sold them. They were the same tires on it at the time of the wreck. * * *

Q. Do you know how many miles those tires had been from the time they were purchased until the time of the wreck? Ans: 24,000 miles."

C. K. Wishon, testified, in part:

"I recall that sometime in the month of June, 1935, Mr. C. V. York, Jr., brought in an automobile of his father's. I examined the automobile.

Q. I wish you would state to the Court and the jury the condition of the tires? Ans: The tires were practically worn out.

Q. Will you describe their condition as nearly as you can? Ans: Well, the tires were worn to the breakers in most of them and the tread worn off and part of them worn down to the breaker strippings."

The defendant introduced no evidence.

The issues submitted to the jury and their answers thereto, were as follows:

"1. Was the plaintiff, Mrs. Mabel A. York, injured by the negligence of the defendant C. V. York, as alleged in the complaint? Ans: Yes.

2. What amount, if any, is the plaintiff entitled to recover of the defendant? Ans: $12,000.00."

The court below rendered judgment on the verdict. Defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

BARNHILL, J., STACY, C.J., and WINBORNE, J., dissenting.

Murray Allen and Smith, Leach & Anderson, all of Raleigh, for appellant.

Charles U. Harris and Ehringhaus, Royall, Gosney & Smith, all of Raleigh, for appellee.

CLARKSON Justice.

In this jurisdiction a wife has the right to bring an action for actionable negligence against her husband. Roberts v. Roberts, 185 N.C. 566, 567, 118 S.E. 9, 29 A.L.R. 1479; Shirley v. Ayers, 201 N.C. 51, 55, 158 S.E. 840; Jernigan v. Jernigan, 207 N.C. 831, 178 S.E. 587.

In Harper v. Seaboard Air Line Ry. Co., 211 N.C. 398, 402, 190 S.E. 750, 752, citing many authorities, it is said: "It is well settled in this jurisdiction that negligence on the part of a driver of a car will not ordinarily be imputed to another occupant unless such other occupant is the owner of the car or has some kind of control over the driver. They must be engaged in a joint enterprise or joint venture. Automobile driver's negligence is not, as a general rule, imputable to a passenger or guest."

The defendant introduced no evidence. At the close of plaintiff's evidence, the defendant in the court below made a motion for judgment as in case of nonsuit. C.S. § 567. The court below overruled the motion, and in this we can see no error. The evidence which makes for plaintiff's claim, or tends to support her cause of action, is to be taken in its most favorable light for the plaintiff, and she is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.

It is alleged in the complaint, and we think the evidence sustains the allegations: "That defendant negligently and carelessly drove his automobile at a high and dangerous speed; That he continued to negligently and carelessly drive his automobile at a high and dangerous speed in the face of and into a fast approaching storm and rain and into a sharp curve in the road. That he negligently and carelessly failed to equip his automobile with tires that were safe to drive-and did negligently drive his automobile with tires that were unsafe."

In Waller v. Hipp, 208 N.C. 117, 120, 179 S.E. 428 430, it is...