{
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  "name": "RICKY WARD, by his Guardian ad Litem, CECIL WARD v. MORRIS WORLEY, by his Guardian ad Litem, EDNA WORLEY",
  "name_abbreviation": "Ward ex rel. Ward v. Worley ex rel. Worley",
  "decision_date": "1971-10-20",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Brock and Graham concur."
    ],
    "parties": [
      "RICKY WARD, by his Guardian ad Litem, CECIL WARD v. MORRIS WORLEY, by his Guardian ad Litem, EDNA WORLEY"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nDefendant contends that the court below erred in denying his motions for directed verdict and for judgment notwithstanding the verdict by failing to find plaintiff contributorily negligent as a matter of law. \u201cWhether a motion for judgment as of nonsuit should be sustained on the ground that the plaintiff is guilty of contributory negligence as a matter of law, presents in many cases a very difficult question. However, the decision on such motion must be made in light of the facts in each particular case.\u201d Tew v. Runnels, 249 N.C. 1, 105 S.E. 2d 108. \u201cWhere conflicting inferences may be drawn from the circumstances, whether the failure of the passenger to avail himself of opportunity for affirmative action for his own safety should constitute contributory negligence is a matter for the jury.\u201d Samuels v. Bowers, 232 N.C. 149, 59 S.E. 2d 787. This problem is also dealt with in Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305:\n\u201cJustice Lake in Douglas v. W. C. Mallison and Son, 265 N.C. 362, 144 S.E. 2d 138, has accurately and concisely stated the rule governing nonsuit on the ground of plaintiff\u2019s contributory negligence. \u2018A judgment of nonsuit on the ground of contributory negligence may be entered only when the plaintiff\u2019s evidence, considered alone and taken in the light most favorable to him, so clearly establishes the defense that no other reasonable inference or conclusion can be drawn therefrom. [Citations omitted.] \u2019 \u201d\nWe hold that the issue of plaintiff\u2019s contributory negligence was properly submitted to the jury and that the trial judge did not err in failing to allow defendant\u2019s motions for directed verdict and judgment notwithstanding the verdict.\nDefendant further contends that the court below committed error in its charge to the jury by failing to refer to foreseeability in its definiton of proximate cause. Judge Walton, in the trial below, defined proximate cause as \u201c . . . the real, the efficient, the dominant cause. A cause without which the injury would not have been sustained. An act is said to be a proximate cause of an injury or damage when in a natural and continuous sequence unbroken by any new or independent cause, it produces the results complained of and without which the injury or damage would not have occurred.\u201d\nThe Supreme Court in Mattingly v. R. R., 253 N.C. 746, 117 S.E. 2d 844 stated its definition of proximate cause as \u201c ... a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed.\u201d (Emphasis added.) Nance v. Parks, 266 N.C. 206, 146 S.E. 2d 24; Keener v. Litsinger, 11 N.C. App. 590, 181 S.E. 2d 781. Furthermore, in Pittman v. Swanson, 255 N.C. 681, 122 S.E. 2d 814 the Court stated: \u201cThe court\u2019s definition of proximate cause is inadequate, in that, inter alia, it made no reference to foreseeable injury, which is a requisite of proximate cause.\u201d This Court in Keener v. Litsinger, supra, said, \u201cA proper definition of proximate cause is mandatory and a new trial will be ordered where a proper definition is not given. Barefoot v. Joyner, 270 N.C. 388, 154 S.E. 2d 543.\u201d\nFor the reasons stated, defendant is entitled to a new trial.\nNew trial.\nJudges Brock and Graham concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "D. F. McGougan, Jr., for plaintiff appellee.",
      "Smith and Spivey by James K. Larrick for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "RICKY WARD, by his Guardian ad Litem, CECIL WARD v. MORRIS WORLEY, by his Guardian ad Litem, EDNA WORLEY\nNo. 7113DC498\n(Filed 20 October 1971)\nNegligence \u00a7 40 \u2014 instruction on proximate cause \u2014 foreseeability\nFailure of the trial court to charge that foreseeability is an element of proximate cause is reversible error.\nAppeal by defendant from Walton, District Judge, 15 February 1971 Session of District Court held in COLUMBUS County.\nPlaintiff filed a complaint against defendant on 13 March 1970 charging him with negligence in operating a motor vehicle at a speed greater than was reasonable and prudent under existing conditions; operating a motor vehicle at a rate of speed in excess of the posted speed limit; operating a motor vehicle without keeping a proper lookout; operating a motor vehicle without keeping it under proper control; and that through this negligent operation plaintiff suffered shoulder, back and chest injuries. Plaintiff sought damages in the amount of $5,000.00. Defendant answered and alleged that plaintiff was guilty of contributory negligence in knowingly riding with defendant after defendant had consumed an excessive amount of alcoholic beverages.\nAt approximately 10:30 p.m. on the evening of 12 December 1969 plaintiff entered defendant\u2019s car in Whiteville, North Carolina. At approximately 1:00 a.m. on the morning of 13 December 1969 the vehicle containing plaintiff and defendant was involved in an accident as defendant driver attempted to make a turn off Highway 130. Plaintiff sustained certain injuries in the accident. Plaintiff and defendant had been riding around in defendant\u2019s car from 10:30 p.m. until the time of the accident.\nPlaintiff\u2019s testimony, in addition to that tending to show the careless manner in which defendant was operating the vehicle, was to the effect that plaintiff had merely accepted an invitation from defendant to ride around for a little while and only after entering the car did he discover that defendant had been drinking. He warned defendant about his driving and requested that defendant take him home, which defendant was doing at the time of the accident. Plaintiff was not drinking. Defendant\u2019s testimony, on the other hand, tended to show that, although defendant was under the influence of alcohol, plaintiff was a willing passenger as they drove around to various taverns and that plaintiff was also drinking that night. Defendant testified that plaintiff never commented about his driving. The court denied defendant\u2019s motions for a directed verdict and for judgment notwithstanding the verdict. The jury found that defendant\u2019s negligence caused plaintiff\u2019s injuries, plaintiff was not contributorily negligent, and awarded plaintiff $2,000.00 in damages. From this judgment, defendant appeals.\nD. F. McGougan, Jr., for plaintiff appellee.\nSmith and Spivey by James K. Larrick for defendant appellant."
  },
  "file_name": "0555-01",
  "first_page_order": 581,
  "last_page_order": 583
}