King v. . Pope

Clakicson, J. At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence, tbe defendant in tbe court below made motions for judgment as in case of nonsuit. O. S., 567. Tbe court below overruled tbe motions and in tbis we can see no error. All tbe evidence was to tbe effect tbat defendant bad violated certain provisions of the Motor Yebicle Uniform Act, N. C. Code, 1931, Anno. (Micbie), 2621(45), in reference to reckless driving; 2621(46) a and b, restrictions as to speed; 2621(51), driving on right side of highway, 2621(54), 2621(55). Tbe court below read to tbe jury tbe sections above of tbe Motor Yebicle Uniform Act, which were applicable to tbe facts in tbis case. Tbe court defined “negligence,” “proximate cause” and “contributory negligence,” and gave tbe contentions on tbis issue as to negligence, and charged tbe jury: “If you find by tbe greater weight of tbe evidence tbat Mr. Pope was operating tbe car in violation’of tbe laws enacted by tbe General Assembly for tbe safety of people, and tbat by reason of such violations of tbe law Mr. King was injured, and that such violation was tbe proximate cause of bis injury, it will be your duty to answer tbe first issue ‘Yes.’ If you do not so find, it will be your duty to answer it ‘No.’ I have defined tbe term, negligence. Tbe burden of tbe issue is upon tbe plaintiff, Mr. King, and if be has satisfied you by tbe greater weight of tbe evidence tbat tbe defendant, Mr. Pope, was negligent, and tbat Mr. Pope’s negligence was tbe proximate cause, tbe real cause of bis injuries, it would be your duty to answer tbe first issue ‘Yes.’ If you do not so find, or if upon an entire weighing and considering all tbe evidence you find it equally balanced it would be your duty to answer tbe issue ‘No.’ . . . Tbe burden of tbe issue is upon tbe plaintiff, Mr. King, and if be has satisfied you by tbe greater weight pf tbe evidence tbat tbe defendant, Mr. Pope, was negligent, and tbat Mr. Pope’s negligence was tbe proximate cause, tbe real cause of bis injuries, it would be your duty to answer tbe first issue ‘Yes.’ If you do not so find, or if upon an entire weighing and considering all tbe evidence you find it equally balanced it- would be your duty to answer tbe issue ‘No.’ ” *558 In Godfrey v. Coach Co., 201 N. C., at p. 267, speaking to tbe subject, we find: “Tbe -violation of a statute, intended and designed to prevent injury to persons or property, or tbe failure to observe a positive safety requirement of tbe law, is, under a uniform line of decisions, negligence per se. Dickey v. R. R., 196 N. C., 726, 147 S. E., 15; Ledbetter v. English, 166 N. C., 125, 81 S. E., 1066. And wben a violation or failure of tbis kind is admitted or established, it is ordinarily a question for tbe jury to determine whether such negligence is tbe proximate cause of tbe injury. Stultz v. Thomas, 182 N. C., 470, 109 S. E., 361.” Tbe defendant made no exceptions to tbis part of tbe charge of tbe court below. Tbe jury answered this issue that plaintiff was injured by tbe negligence of tbe defendant. Tbe battle was over the second issue: “Did tbe plaintiff by bis own negligence contribute to bis injury?” Tbe defendant contends: “Tbe court should have held plaintiff negligent as a matter of law in not demanding and insisting that tbe defendant stop tbe automobile and permit him, tbe plaintiff, to get out of the same.” We cannot so bold. Under tbe facts and circumstances of this case, we think it was a question of fact for tbe jury to determine. Tbe court below charged tbe jury, in part, on tbis issue as follows: “I further instruct you that tbe law recognizes that contributory negligence may be due either to acts'of omission or acts of commission; in other woi’ds, lack of diligence or want of due care on tbe part of tbe plaintiff may consist of doing tbe wrong thing at tbe time and place in question, or may consist of doing nothing wben something should be done. Tbe test is: Did tbe plaintiff exercise that degree of care which tbe ordinarily prudent man would exercise under similar circumstances, and was bis failure to do so tbe proximate cause of bis injury? Defendant Pope contends that bis failure to exercise proper care was the cause of bis injury and defendant Pope contends that it was an act of omission on bis part; that be failed to do something that be should have done; that by bis own testimony be told tbe jury Hr. Pope was operating tbe car recklessly, at a high and excessive rate of speed, and that be failed to have him stop tbe car and get out, and that by tbis act of omission be was negligent and that you should so find. Plaintiff contends that be remonstrated as best be could and that be was not tbe owner of tbe car and that be did tbe best be could. If tbe defendant Pope has satisfied you by tbe greater weight of tbe evidence that King was negligent, and that bis negligence was tbe proximate cause of the injury it would be your duty to answer tbe second issue ‘Yes/ but if you do not so find, and if upon weighing and considering all -the evidence you find it equally balanced, you will answer it ‘No.’ ” We think *559 the charge of the court below correct, and the question of contributory negligence was for the jury to decide — not the court. In Huddy Automobile Law, Yol. 5-6, 9th ed. (1931), at p. 265, is the following: “The duty to remonstrate against excessive speed is not, however, absolute, but depends on the circumstances of the particular case, and usually presents a jury question,” citing numerous authorities. At p. 267-8: “The circumstances may be such as to charge the occupant with negligence as a matter of law, where he unreasonably remains in the machine after adequate opportunity is offered for alighting, or at least, where he fails to insist on leaving the car. But this duty is not absolute, the question whether a failure .to leave the vehicle is & want of ordinary care being dependent on the circumstances of the particular ease.” In Krause v. Hall (1928), 195 Wisconsin, 565, 217 N. W. Rep., at p. 292, the following observations are made. “No case has been found, however, which attempts to define the amount of protestation necessary to relieve the guest of contributory negligence as a matter of law. When it is considered that the guest has no control over the automobile, and that it is not within his power to coerce the driver, it is apparent that all the guest may do is to indicate to the host his or her displeasure with reference to the manner in which the car is being driven. Under such circumstances, the considerate host will respect the feelings of his guest and modify his rate of speed, or other reckless conduct, to conform to the pleasure of his guest. 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. Here the plaintiff did protest, not once, but several times. She did ask to be let out of the car, and it was for the jury to say whether her failure in this respect constituted a want of ordinary care on her part. The jury might well have believed that the ordinary person would have táken chances on remaining in the car rather than be let out on a highway many miles from home on a dark night. It seems fairly plain that in every respect the question of plaintiff’s contributory negligence was for the jury, and that their finding with reference thereto cannot be disturbed.” Royer v. Saecker et al. (1931), Wis., ., 234 N. W. Rep., 742. Curran v. Earle C. Anthony, Inc. (Cal.), 247 Pac. Rep., 236; Munson v. Rupker (Ind.), 148 N. E., 169; Heyde v. Patten (Mo.), 39 S. W., 813. In Nettles v. Rea, 200 N. C., at p. 45, is the following: “Conceding, without deciding, that plaintiff may have been negligent in entering defendant’s car under the circumstances disclosed by the record, nevertheless there is evidence of wilful and wanton conduct on the part of the *560 defendant in persisting in bis reckless driving over tbe protests of bis guests wbicb resulted in plaintiff’s injury. Tbis, if nothing else, saves tbe case from a nonsuit,” citing authorities. Bailey v. R. R., 149 N. C., 169; Ballew v. R. R., 186 N. C., 704; Braxton v. Matthews, 199 N. C., 484. “ 'But as stated in Ballew v. R. R., supra, tbe intent to inflict tbe injury may be constructive as well as actual. It is constructive where tbe wrongdoer’s conduct is so reckless or so manifestly indifferent to tbe consequences, where tbe safety of life or limb is involved, as to justify a finding of wilfulness and wantonness equivalent in spirit to actual intent.’ ” Braxton’s case, supra, at p. 485. If tbe defendant’s conduct was wilful and wanton, tbe plea of contributory negligence could not avail him, and be would not, under such circumstances, be entitled to a nonsuit. In the judgment below we find No error.