{ "id": 8555063, "name": "ANNIE L. NAYLOR v. LESTUS LEE NAYLOR", "name_abbreviation": "Naylor v. Naylor", "decision_date": "1971-05-26", "docket_number": "No. 714SC225", "first_page": "384", "last_page": "386", "citations": [ { "type": "official", "cite": "11 N.C. App. 384" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "166 S.E. 2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552069 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/4/0153-01" ] }, { "cite": "98 S.E. 2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625839 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0257-01" ] }, { "cite": "139 S.E. 2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570346 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0417-01" ] }, { "cite": "120 S.E. 2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567607 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0137-01" ] }, { "cite": "176 S.E. 2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550717 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0397-01" ] } ], "analysis": { "cardinality": 324, "char_count": 4978, "ocr_confidence": 0.575, "pagerank": { "raw": 1.9841007839012088e-07, "percentile": 0.7409532370420051 }, "sha256": "c4eb9f098996d428866fbadbd9528434bd36ade4c5ad7ef9e9c19021edd7e518", "simhash": "1:8d0ac0465f95085e", "word_count": 813 }, "last_updated": "2023-07-14T15:10:46.806740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Graham concur." ], "parties": [ "ANNIE L. NAYLOR v. LESTUS LEE NAYLOR" ], "opinions": [ { "text": "BRITT, Judge.\nPlaintiff\u2019s sole assignment of error is that the trial court erred in directing a verdict for defendant at the close of plaintiff\u2019s evidence; she contends that her evidence did not show her to be contributorily negligent as a matter of law. We agree with this contention.\nOn appeal from the granting of a motion for directed verdict under Rule 50(a) of the Rules of Oivil Procedure, we must determine the sufficiency of plaintiff\u2019s evidence guided by the same principles applicable in determining the sufficiency of evidence to withstand the former motion for nonsuit under G.S. 1-183. Anderson v. Mann, 9 N.C. App. 397, 176 S.E. 2d 365 (1970). In Dinkins v. Carlton, 255 N.C. 137, 120 S.E. 2d 543 (1961) in the third headnote to the opinion, we find the following:\nWhether a passenger is guilty of contributory negligence in voluntarily embarking on a trip with a driver whom he knows to be reckless, or in failing to abandon the trip after discovery that the driver was operating the vehicle in a reckless manner or while intoxicated, or in failing to remonstrate with the driver, is usually a question for the jury under the rule of the ordinary prudent man, and the conduct of the passenger in these respects will not ordinarily be held for contributory negligence as a matter of law.\nIn considering a motion for a directed verdict in favor of defendant, the evidence must be viewed in the light most favorable to plaintiff and a directed verdict is proper only when contributory negligence is so clearly established that no other conclusion can reasonably be reached. Beam v. Parham, 263 N.C. 417, 139 S.E. 2d 712 (1965); Bell v. Maxwell, 246 N.C. 257, 98 S.E. 2d 33 (1957) ; Jackson v. Jackson, 4 N.C. App. 153, 166 S.E. 2d 541 (1969). Discrepancies and contradictions in the evidence are to be resolved by the jury and not by the court. Dinkins v. Carlton, supra; Jackson v. Jackson, supra.\nWhen the testimony given at trial in the instant case is viewed in the light most favorable to plaintiff one must conclude that plaintiff had not seen defendant drinking, did not smell alcohol on defendant, and by observing defendant\u2019s actions did not recognize that he was intoxicated; therefore, it was error for the court to hold that plaintiff in riding with defendant was contributorily negligent as a matter of law.\nThe judgment appealed from is\nReversed.\nJudges Campbell and Graham concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "Bryan, Jones, Johnson, Hunter & Greene and Stewart and Hayes by Gerald Hayes for plaintiff appellant.", "Chambliss, Paderiek & Warrick by Joseph B. Chambliss for defendant appellee." ], "corrections": "", "head_matter": "ANNIE L. NAYLOR v. LESTUS LEE NAYLOR\nNo. 714SC225\n(Filed 26 May 1971)\nAutomobiles \u00a7 94\u2014 intoxicated driver \u2014 contributory negligence of passenger\nEvidence of plaintiff automobile passenger did not establish that she was contributorily negligent as a matter of law in riding with an intoxicated driver, that being a question for the jury, where plaintiff testified that she did not see the driver consume any alcoholic beverage, did not smell any alcohol on his person, and was not aware that he had been drinking.\nAppeal by plaintiff from Parker, Judge, 19 November 1970 Civil Session, Sampson Superior Court.\nThis is a civil action in which plaintiff seeks to recover damages for personal injury sustained by her while riding as a passenger in an automobile owned and operated by defendant.\nIn his answer, defendant pleaded contributory negligence on the part of plaintiff, alleging specifically that plaintiff voluntarily rode with defendant when she knew that he had consumed a considerable quantity of intoxicants.\nDefendant\u2019s negligence is not seriously challenged. The evidence showed that defendant\u2019s automobile made a right turn at a \u201cT\u201d intersection, that his turn was \u201ctoo wide,\u201d and he collided head-on with another vehicle.\nPlaintiff presented State Highway Patrolman Laughing-house, the investigating officer, as a witness. Among other things, he testified that immediately after the collision he talked with the defendant, smelled intoxicants on his breath, and otherwise observed defendant; that in his opinion defendant was under the influence of intoxicants to an appreciable degree; that in criminal court, defendant pleaded guilty to driving under the influence of intoxicants and failing to drive his vehicle on the right half of the highway.\nPlaintiff testified that she had been riding with defendant off and on since 5:30 p.m. that day, the collision occurring around 10:00 p.m. During that time she did not see defendant consume any alcoholic beverage, did not smell any alcohol on his person, and was not aware that he had been drinking.\nAfter plaintiff rested her case, defendant moved for a directed verdict under Rule 50(a) upon the ground that plaintiff\u2019s own evidence showed her contributory negligence as a matter of law in that she rode with defendant while he was intoxicated. The motion was allowed and plaintiff appealed from judgment predicated thereon.\nBryan, Jones, Johnson, Hunter & Greene and Stewart and Hayes by Gerald Hayes for plaintiff appellant.\nChambliss, Paderiek & Warrick by Joseph B. Chambliss for defendant appellee." }, "file_name": "0384-01", "first_page_order": 408, "last_page_order": 410 }