{
  "id": 8546838,
  "name": "CLIFTON GATTIS LEE v. RICHARD MARK KELLENBERGER",
  "name_abbreviation": "Lee v. Kellenberger",
  "decision_date": "1975-12-17",
  "docket_number": "No. 7511SC466",
  "first_page": "56",
  "last_page": "60",
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    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "reporter": "S.E.2d",
      "year": 1974,
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      "cite": "136 S.E. 2d 33",
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      "reporter": "S.E.2d",
      "year": 1964,
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      "cite": "261 N.C. 684",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1946,
      "opinion_index": 0
    },
    {
      "cite": "226 N.C. 237",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1946,
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    {
      "cite": "46 S.E. 2d 829",
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      "reporter": "S.E.2d",
      "year": 1948,
      "pin_cites": [
        {
          "page": "832"
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    {
      "cite": "228 N.C. 651",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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  "last_updated": "2023-07-14T22:58:46.500479+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Britt and Clark concur."
    ],
    "parties": [
      "CLIFTON GATTIS LEE v. RICHARD MARK KELLENBERGER"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nPlaintiff\u2019s assignments of error are all directed to the court\u2019s charge to the jury. His first assignment of error is based on his exception to the following portion of the charge in which the court was summarizing the testimony of the investigating police officer:\n\u201cHe (the police officer) testified that in his opinion the plaintiff and defendant were under the influence of intoxi-eating liquor but he didn\u2019t know to what extent. He testified that in his opinion their mental and physical faculties were affected by intoxicating liquor but he didn\u2019t know to what extent.\u201d\nPlaintiff does not contend that this was in itself an inaccurate statement of the officer\u2019s testimony. He contends that it was an incomplete statement in that the court failed to summarize for the jury the officer\u2019s explanation of why he did not know to what extent the faculties of plaintiff and defendant were affected by intoxicating liquor. In this connection the officer testified he first saw plaintiff and defendant some thirty minutes after the accident when he interviewed them in the hospital emergency room. He testified that each had the odor of alcohol on his breath, that each had bloodshot eyes, and that in his opinion each was under the influence of an intoxicating beverage, but he did not \u201cknow the extent or how much they had had.\u201d In explanation, the officer testified that \u201c[d]ue to the fact that those people had been injured, it was harder to tell whether their actions were coming from alcohol or from injuries.\u201d Plaintiff contends that by failing to include this explanation in its summary of the officer\u2019s testimony, the court \u201cexpressed an opinion on the evidence favorable to the defendant.\u201d We do not agree.\nIn its charge to the jury the court is not required to review all of the evidence. It must of necessity condense and summarize. \u201cAll that is required is a summation sufficiently comprehensive to present every substantial and essential feature of the case.\u201d Steelman v. Benfield, 228 N.C. 651, 654, 46 S.E. 2d 829, 832 (1948). Here, the court\u2019s summation was sufficient for that purpose. Moreover, if plaintiff\u2019s counsel felt that the court\u2019s condensed statement of the officer\u2019s testimony, by omitting reference to the officer\u2019s explanation, resulted in an incorrect or distorted reflection of that testimony, it was the duty of counsel to call attention thereto and request a correction. Steelman v. Benfield, swpra. This was not done, though counsel was given the opportunity when the court inquired if either side desired further instructions. Plaintiff\u2019s first assignment of error is overruled.\nIn charging the jury on the issue of contributory negligence, the court instructed the jurors that if the defendant had satisfied them by the greater weight of the evidence that the plaintiff failed to exercise due care for his own safety, \u201cor that he voluntarily rode with the defendant knowing that the defendant was under the influence of intoxicating liquor, that such conduct would constitute negligence.\u201d Plaintiff\u2019s exception to the quoted portion of the charge is the basis of his second assignment of error. We find no error prejudicial to plaintiff in the portion of the charge excepted to. Earlier in the charge the court, following the formulation approved in State v. Carroll, 226 N.C. 237, 37 S.E. 2d 688 (1946), fully and correctly defined for the jury what is meant by being \u201cunder the influence of intoxicating liquor\u201d as that phrase is used in G.S. 20-138. It is negligence per se for one to operate an automobile while under the influence of intoxicating liquor within the meaning of that statute, and \u201c [i] f one enters an automobile with knowledge that the driver is under the influence of an intoxicant and voluntarily rides with him, he is guilty of contributory negligence per se.\u201d Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E. 2d 33, 35 (1964). Having previously defined the term \u201cunder the influence of intoxicating liquor,\u201d it was not necessary for the court to repeat the definition in the portion of the charge excepted to. Plaintiff\u2019s second assignment of error is overruled.\nIn apt time as provided by G.S. 1A-1, Rule 51(b), plaintiff requested the court to give the following special instruction to the jury:\n\u201cThat according to plaintiff\u2019s testimony, he had no knowledge of any appreciable impairment of defendant\u2019s mental or physical faculties from either intoxication or lack of sleep and if the jury believes this testimony, it should not find plaintiff contributorily negligent in not staying awake to help the defendant drive the car.\u201d\nThe court refused to give the requested instruction, to which plaintiff assigns error. We find no error in the court\u2019s refusal. In the first place, plaintiff\u2019s contributory negligence did not consist merely in his \u201cnot staying awake to help the defendant drive the car.\u201d If plaintiff knew that defendant\u2019s faculties were in fact appreciably impaired from intoxication or lack of sleep, it would have been contributory negligence for plaintiff to continue to ride in the car with defendant driving, quite apart from whether plaintiff did or did not stay awake. More importantly, it was a question for the jury whether plaintiff knew or in the exercise of due care should have known that defendant\u2019s faculties were appreciably impaired. The jury\u2019s acceptance as true of plaintiff\u2019s self-serving testimony that he did not Jmow of any impairment of defendant\u2019s faculties would not alone be sufficient to exonerate plaintiff of contributory negligence. There was ample evidence from which the jury could find that in the exercise of due care plaintiff should have known they were. On cross-examination, plaintiff testified:\n\u201cI do know that he (referring to the defendant) was drinking while we were there (referring to the Last Chance Tavern). I just don\u2019t know how much.\nI do know when we left that I asked him if he had been drinking very much and he said he hadn\u2019t been but we didn\u2019t go out there with the intention of drinking a lot of beer.I just asked him if he had been drinking, how many he had to drink. I didn\u2019t know he was tired. I was aware that he could have been sleeping during the day while I was working, but I didn\u2019t know. But I was concerned about his ability to drive after we left the trailer park.\u201d\nThe evidence shows that the accident occurred after they left the trailer park. The jury could legitimately find from plaintiff\u2019s own testimony, that although he did not actually know that defendant\u2019s faculties were so impaired that it was no longer safe to continue riding in the car with defendant as the driver, in the exercise of due care for his own safety plaintiff should have known that such was the case. There was no error in the court\u2019s refusal to give the requested instruction, and plaintiff\u2019s assignment of error directed to such refusal is overruled.\nFinally, citing Walser v. Coley, 21 N.C. App. 654, 205 S.E. 2d 366 (1974), plaintiff contends that \u201cthe charge as a whole fails to adequately instruct the jury as to the conditions which must be established before a passenger who voluntarily rides with a person who has had something to drink or is tired can be guilty of contributory negligence.\u201d We do not agree. On a careful reading of the entire charge, particularly as it relates to the issue of contributory negligence, we find that if any error was committed therein, it was favorable to the plaintiff and not such as to which he may now justly complain.\nNo error.\nJudges Britt and Clark concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Levinson & Berkau by Thomas S. Berkau for plaintiff appellant.",
      "Mast, Tew & Nall, P.A., by George B. Mast and Joseph T. Nall for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "CLIFTON GATTIS LEE v. RICHARD MARK KELLENBERGER\nNo. 7511SC466\n(Filed 17 December 1975)\n1. Automobiles \u00a7 90\u2014 summary of testimony by trial court \u2014 no error\nThe trial court in his jury instruction was not required to state all of an officer\u2019s testimony with respect to the parties\u2019 intoxication, but was required only to present in summary every substantial and essential feature of the case; moreover, if plaintiff\u2019s counsel felt that the court\u2019s condensed statement of the officer\u2019s testimony resulted in an incorrect or distorted reflection of that testimony, it was the duty of counsel to call attention thereto and request a correction.\n2. Automobiles \u00a7 90 \u2014 instruction on contributory negligence \u2014 repetition of definition unnecessary\nWhere the trial court had previously defined the term \u201cunder the influence of intoxicating liquor,\u201d it was not necessary for the court to repeat the definition in explaining that plaintiff would be negligent if he voluntarily rode with the defendant knowing that defendant was under the influence of intoxicating liquor.\n3. Automobiles \u00a7 90; Rules of Civil Procedure \u00a7 51 \u2014 requested instruction\u2014 failure of court to give \u2014 no error\nThe trial court did not err in refusing to give an instruction requested by plaintiff concerning plaintiff\u2019s knowledge as to the mental or physical impairment of defendant.\nOn writ of certiorari to review proceedings before Hall, Judge. Judgment entered 7 March 1975 in Superior Court, Johnston County. Heard in the Court of Appeals 22 September 1975.\nPlaintiff-passenger brought this action to recover damages for personal injuries sustained when defendant-driver\u2019s automobile struck and split a utility pole in a single car accident which occurred at 2:45 a.m. on 6 July 1973. Plaintiff and defendant were the only occupants of the car, and they were both injured in the wreck. They had been together since the preceding evening, when they visited the Last Chance Tavern and later went to a party with friends. They were on their way to defendant\u2019s house when the accident occurred.\nPlaintiff alleged that defendant was negligent in failing to keep a proper lookout, in failing to keep his vehicle under proper control, and in other respects. Defendant denied negligence and pleaded plaintiff\u2019s contributory negligence in entering and remaining in defendant\u2019s car knowing that the driver was under the influence of intoxicating beverages and was sleepy and that his ability to operate an automobile was substantially impaired. Plaintiff testified that he was himself asleep when the accident occurred.\nThe jury answered issues of negligence and contributory negligence in the affirmative. From judgment that plaintiff recover nothing in this action, plaintiff appealed but failed to docket the record on appeal in apt time. This court subsequently granted plaintiff\u2019s petition for writ of certiorari.\nLevinson & Berkau by Thomas S. Berkau for plaintiff appellant.\nMast, Tew & Nall, P.A., by George B. Mast and Joseph T. Nall for defendant appellee."
  },
  "file_name": "0056-01",
  "first_page_order": 84,
  "last_page_order": 88
}