Howell v. Lawless

133 S.E.2d 508 (1963)

260 N.C. 670

Thomas H. HOWELL, Jr., by his Next Friend, G. Ray Motsinger, v. Erskine T. LAWLESS, and John T. Thacker, Guardian of Erksine T. Lawless.

No. 390.

Supreme Court of North Carolina.

December 11, 1963.

Clyde C. Randolph, Jr., Winston-Salem, for plaintiff appellee.

Deal, Hutchins & Minor, Winston-Salem, for defendant appellant.

SHARP, Justice.

The determinative question on this appeal is whether plaintiff's evidence, considered in the light most favorable to the defendant, contains any inference that the plaintiff himself was guilty of contributory negligence. Wilson v. Camp, 249 N.C. 754, 107 S.E.2d 743. If there is more than a scintilla of such evidence, it is a matter for the jury. Absher v. City of Raleigh, 211 N.C. 567, 190 S.E. 897. Plaintiff's evidence discloses the following facts:

About 4:30 p. m. on October 14, 1961, plaintiff and defendant purchased six twelve-ounce cans of beer at a tavern. They then repaired to an ABC store where they bought a pint of one-hundred proof vodka. At 6:00 p. m. they arrived at the Dixie Classic Fair. Between that time and 10:30 p. m. each had consumed three beers and had taken three "medium" drinks directly from the bottle of vodka. They shared the vodka with a third person to whom they gave the half emptied bottle when they left the fairground. Between midnight and 12:30 a. m. plaintiff and defendant went to a grill where each had a sandwich. Shortly after 1:00 a. m. they were enroute home in defendant's automobile, traveling north on Indiana Avenue. The speed limit for the area was thirty-five miles per hour and the automobile was in good mechanical condition. Defendant drove the automobile into a sharp curve to the right at a speed of about fifty miles per hour. Its right wheels went off on the *510 right shoulder of the road. The defendant quickly turned the vehicle back onto the pavement where it skidded and ran off the left side of the road, pushing over two trees and clipping a guy wire before coming to rest.

About thirty minutes after the accident an ambulance arrived and took plaintiff and the defendant to a hospital. Highway Patrolman Woods learned of the accident at 2:10 a. m. and went immediately to the scene where he examined the automobile which appeared to him to be a total loss. Later that night he interviewed the defendant at the emergency room of the Baptist Hospital. At the trial, the patrolman testified: "I do know that just as soon as I confronted him I could smell an alcoholic beverage; there was no doubt about what it was."

Plaintiff testified that neither he nor the defendant had drunk any alcoholic beverages after 10:30 p. m. He stated that during the evening the defendant had consumed as much as he had; that the effect of the vodka upon him "was still there to some extent" when he left the Fair; that he had ridden with the defendant when he was quite sober and on those occasions defendant had never attempted to take that curve at any such rate of speed. With reference to defendant's operation of the automoble, plaintiff testified: "(H)e wasn't reckless or nothing. I mean I wasn't scared to ride with him and I don't think anybody else would have been."

Whether a guest passenger who voluntarily enters an automobile being operated by a driver he knows has been drinking intoxicants is guilty of contributory negligence is a matter to be determined by the rules expounded in Dinkins v. Carlton, 255 N.C. 137, 120 S.E.2d 543 and Bell v. Maxwell, 246 N.C. 257, 98 S.E.2d 33. By those standards, the foregoing evidence is clearly sufficient to require the submission of the question of plaintiff's contributory negligence to the jury. In order that it may be submitted, there must be a

New trial.