Ivey v. Rollins

108 S.E.2d 63 (1959)

250 N.C. 89

Charles M. IVEY, Jr., Administrator of the Estate of John W. Hadnot v. Clyde T. ROLLINS, Administrator of the Estate of Luke R. Hadnot, Jr.

No. 601.

Supreme Court of North Carolina.

April 8, 1959.

*64 McLendon, Brim, Holderness & Brooks, L. P. McLendon, Jr., Hubert B. Humphrey, Greensboro, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendant appellee.

WINBORNE, Chief Justice.

The accident involved in present case, having occurred in the State of South *65 Carolina, and the action having been instituted in the State of North Carolina, the parties concede (1) that the substantive law of South Carolina determines the cause of action maintainable by plaintiff as well as the measure of damages, Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82; (2) that the law of the forum governs in regard to matters of evidence, including the application of res ipsa loquitur doctrine and procedure, and including the joinder of claims for wrongful death and conscious pain and suffering. Restatement of the Law of Conflict of Laws, Sections 585, 587 and 595.

Appellant, in brief filed in this Court, states substantially this as the question here involved: Did the trial court err in granting the defendant's motion for nonsuit at the close of plaintiff's evidence? Stating, that basically this involves two questions of law: (1) Is the doctrine of res ipsa loquitur applicable to the facts at bar? And (2) Was plaintiff's intestate, a child of tender years, a "guest" within the meaning of the South Carolina Guest Statute, requiring proof of intentional, heedless or reckless conduct?

Negative answer to the first question is found in opinion delivered this day by this Court in the case of Lane v. Dorney, N.C., 108 S.E.2d 55, where an almost identical question is presented.

In the instant case, there is no evidence of any negligence on the part of anybody. The only established fact is that there was a collision when the automobile in which plaintiff's intestate was riding, traveling in its proper lane, "suddenly swerved sharply" head-on into the bridge abutment. What caused it nobody knows. The cause of it rests in the realm of conjecture, speculation and guesswork.

Therefore the second question becomes moot. It is immaterial whether plaintiff's minor intestate was a guest under the South Carolina Guest Statute or not. Res ipsa loquitur manifestly does not apply for reasons shown in Lane v. Dorney, supra.

Hence the judgment as of nonsuit entered in court below is

Affirmed.

BOBBITT and HIGGINS, JJ., concur in result.