{
  "id": 8522000,
  "name": "MARIE WATSON, Administratrix of the Estate of Hobart Watson, Deceased v. ROBERT R. STORIE",
  "name_abbreviation": "Watson v. Storie",
  "decision_date": "1984-09-04",
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  "casebody": {
    "judges": [
      "Chief Judge VAUGHN and Judge Wells concur."
    ],
    "parties": [
      "MARIE WATSON, Administratrix of the Estate of Hobart Watson, Deceased v. ROBERT R. STORIE"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nPlaintiff contends, based on Assignment of Error No. 3, that the trial judge erred in submitting the issue of contributory negligence. Plaintiff argues there is no evidence in the record to support the jury\u2019s finding of contributory negligence. Defendant, on the other hand, argues that \u201cthere was more than ample opportunity for the decedent to remove himself from the vehicle ... or to remonstrate the driver to cease driving recklessly, let someone else drive, or stop driving fast and weaving around cars. Instead, the decedent chose to remain in the truck, continue drinking, say nothing of the operation of the vehicle, and not take advantage of the opportunity to remove himself from the danger as it was then presented.\u201d\nThe principle is generally recognized that when a gratuitous passenger becomes aware that the automobile in which he is riding is being persistently driven at an excessive and dangerous speed, the duty devolves upon him in the exercise of due care for his own safety to caution the driver, and, if his warning is disregarded and speed unaltered, to request that the automobile be stopped and he be permitted to leave the car. . . . But this duty is not absolute and is dependent on circumstances. [Citations omitted.] Where 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.\nSamuels v. Bowers, 232 N.C. 149, 153, 59 S.E. 2d 787, 790 (1950) (emphasis added). The issue of contributory negligence should not be submitted to the jury, however, if the evidence reveals that plaintiff was not on notice as to defendant\u2019s negligent behavior or, having notice, had insufficient time or opportunity to react. Norfleet v. Hall, 204 N.C. 573, 169 S.E. 143 (1933); Gwaltney v. Keaton, 29 N.C. App. 91, 223 S.E. 2d 506 (1976).\nIn the instant case, three witnesses offered evidence directly relevant to the accident in question. Defendant testified that the road on which the accident occurred had been freshly scraped, and that he had driven on the scraped portion for \u201cmaybe a mile\u201d and was traveling at a maximum speed of 15 miles per hour when he came to a curve, encountered loose gravel, lost control of the truck, and ran into an embankment. A State Trooper who investigated the accident testified that the road on which the accident occurred was narrow and \u201ccurvey,\u201d with no shoulder and a \u201cpretty steep\u201d grade. Trooper Hollifield stated that there was gravel \u201call over the road.\u201d The witness added that, at the time of his investigation, defendant told him he was traveling at approximately twenty-five miles per hour when the accident occurred. Defendant\u2019s brother, the third witness with knowledge of the accident, testified that defendant was not driving \u201ctoo fast\u201d or in a reckless fashion. We think it clear that this evidence does not permit \u201cconflicting inferences\u201d as to plaintiffs intestate\u2019s contributory negligence. The record is devoid of evidence tending to show that plaintiff was aware, or in the exercise of due care should have been aware, of negligent behavior on the part of defendant, or that plaintiff had opportunity to remonstrate with defendant prior to the accident. Indeed, assuming the evidence established such notice and opportunity, the result would be the same because the record contains no evidence tending to show that plaintiff did not in fact so remonstrate. Defendant had the burden of proof on the issue of plaintiffs intestate\u2019s contributory negligence and, having failed to introduce any evidence in support of his contentions in this regard, was not entitled to have the jury consider the question.\nDefendant points to two pieces of evidence which, he contends, support submission of the issue of decedent\u2019s contributory negligence to the jury. First, defendant argues that the evidence shows that defendant had been drinking beer prior to the accident, and that Mr. Watson was aware of this. We do not find defendant\u2019s contention persuasive. The evidence showed that defendant had consumed three to five beers in a seven-to-eight-hour period, drinking the last one some two hours prior to the accident. There is no evidence that defendant\u2019s ability to operate the truck at the time of the accident was in any way impaired by the beer that he consumed two hours earlier. Defendant also puts much emphasis on testimony by the decedent\u2019s daughter that defendant was driving \u201ctoo fast and weaving\u201d some seven hours prior to the accident. We hold this evidence too remote as a matter of law, Corum v. Comer, 256 N.C. 252, 123 S.E. 2d 473 (1962), and insufficient to raise an inference of decedent\u2019s contributory negligence.\nPlaintiff also contends that the court erred in denying plaintiffs motion for a directed verdict on the issue of defendant\u2019s negligence, arguing that defendant was barred from relitigating the issue of his negligence by the doctrine of res judicata, since the issue of defendant\u2019s negligence was answered at the first trial in favor of plaintiff. We do not agree. When this Court remanded the case for a new trial because of an error in the instructions with respect to contributory negligence, it is clear the court did not err in retrying the issue of defendant\u2019s negligence. The issues of negligence, contributory negligence, and damage were so \u201cinextricably interwoven\u201d that a new trial on all issues was required. See Robertson v. Stanley, 285 N.C. 561, 206 S.E. 2d 190 (1974). Likewise, upon remand for a new trial because there is no evidence in this record to warrant submitting the issue of contributory negligence, there must be a new trial on the issues of defendant\u2019s negligence, if any, and plaintiffs damages.\nNew trial.\nChief Judge VAUGHN and Judge Wells concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "West, Bingham, Delk & Swanson, by Ted G. West, for plaintiff, appellant.",
      "Todd, Vanderbloemen and Respess, P.A., by Bruce W. Vanderbloemen, for defendant, appellee."
    ],
    "corrections": "",
    "head_matter": "MARIE WATSON, Administratrix of the Estate of Hobart Watson, Deceased v. ROBERT R. STORIE\nNo. 8325SC1140\n(Filed 4 September 1984)\n1. Automobiles and Other Vehicles 8 94.8\u2014 continuing to ride with defendant\u2014 failure to remonstrate \u2014 contributory negligence \u2014 insufficient evidence\nThe evidence was insufficient to permit a jury finding that decedent was contributorily negligent in continuing to ride with defendant or in failing to remonstrate with defendant where the record was devoid of evidence tending to show that plaintiff was aware, or in the exercise of due care should have been aware, of negligent behavior on the part of defendant or that plaintiff had an opportunity to remonstrate with defendant prior to the accident; the record contained no evidence tending to show that plaintiff did not in fact so remonstrate; and there was no evidence that defendant\u2019s ability to operate the vehicle at the time of the accident was in any way impaired by beer he had consumed two hours earlier.\n2. Automobiles and Other Vehicles \u00a7 94.8\u2014 failure to remonstrate with driver-evidence too remote\nTestimony that defendant was driving \u201ctoo fast and weaving\u201d some seven hours prior to the accident in question was too remote to raise an inference of contributory negligence by decedent in failing to remonstrate with defendant driver.\n3. Appeal and Error \u00a7 62\u2014 error relating to contributory negligence \u2014 new trial\u2014 retrial of negligence issue\nWhen the appellate court remanded the case for a new trial because of an error in the instructions with respect to contributory negligence, the trial court did not err in retrying the issue of defendant\u2019s negligence since the issues of negligence, contributory negligence and damages were so inextricably interwoven that a new trial on all issues was required.\nAPPEAL by plaintiff from Saunders, Judge. Judgment entered 24 June 1983 in Superior Court, Caldwell County. Heard in the Court of Appeals 27 August 1984.\nThis is a civil action wherein plaintiff, administratrix of the estate of her deceased husband, Hobart Watson, seeks to recover damages for the wrongful death of her intestate allegedly resulting from the negligence of defendant. Evidence introduced at trial tended to show the following:\nOn 17 September 1979, shortly before noon, plaintiffs intestate, his son and daughter, defendant, and two other people set out in a pickup truck for a rural area approximately fifteen miles away. All four men were drinking alcoholic beverages. Decedent\u2019s son and daughter got out of the truck before it reached its destination. Decedent\u2019s daughter testified that she got out of the truck because defendant, driver, \u201cwas going too fast and weaving past cars.\u201d On the return trip, some eight hours later, the truck hit loose gravel and defendant, driver, lost control of the vehicle, which hit an embankment. Plaintiffs intestate was injured in the accident and died approximately thirty-five hours later. Plaintiff subsequently filed this wrongful death action, first tried before a jury in October 1981. Plaintiff appealed to this Court from a jury verdict finding defendant negligent and plaintiffs intestate con-tributorily negligent, and in an opinion reported at 60 N.C. App. 736, 300 S.E. 2d 55 (1983), this Court awarded plaintiff a new trial for error committed by the trial judge in charging the jury. On 20 June 1983 the case was again tried before a jury, which again returned a verdict finding defendant negligent and plaintiffs intestate contributorily negligent. Plaintiff appealed.\nWest, Bingham, Delk & Swanson, by Ted G. West, for plaintiff, appellant.\nTodd, Vanderbloemen and Respess, P.A., by Bruce W. Vanderbloemen, for defendant, appellee."
  },
  "file_name": "0327-01",
  "first_page_order": 359,
  "last_page_order": 363
}