#### NORA CLODFELTER v. PHILLIP WELLS.

(Filed 2 February, 1938.)

1. Automobiles § 22—

An action by a guest to recover of tbe driver for injuries received in an accident is grounded on negligence, with the burden on the guest to affirmatively prove the allegations of the complaint.

2. Automobiles §§ 17, 18g, 22 — Res ipsa loquitur does not apply to skidding of automobile on highway.

In this action by a guest in an automobile to recover for injuries received when the automobile in which she was riding zig-zagged on a straight highway, ran off the road and turned over, plaintiff’s evidence disclosed that the highway was wet, that there was no traffic, but that the driver had not had adequate sleep the night before. The evidence showed, however, that at the time of the accident the driver was apparently alert, and told the occupants to keep steady and he would straighten the ear out, and there was no evidence as to the speed of the car or of defect in the automobile or tires. Held: The evidence fails to support the allegations of the complaint that the driver failed to keep a proper lookout and was driving at an excessive speed in a reckless manner, and the doctrine of res ipsa loquitur not being applicable to the mere skidding of an automobile on the highway, plaintiff’s evidence is insufficient to be submitted to the jury on the issue of the driver’s negligence.

S. Courts § 11 — Matters .of procedure, which include rules for submission of the evidence to the jury, are governed by lex fori.

In an action instituted in this State to recover on a transitory cause of action arising in another state, the substantive laws of the state wherein the cause arose govern, but matters of procedure, which include methods of proof, production of evidence, as well as the rules for the submission of the evidence to the jury, are governed by the laws of this State.

4. Automobiles § 19 — Evidence held to show that plaintiff was not “guest without payment” within meaning of South Carolina statute.

Evidence that members of a party riding in an automobile under an agreement with the driver that they should furnish the lunch and divide expenses of gasoline and oil, held sufficient to support plaintiff guest’s *824contention that they were not “guests without payment” within the meaning of a South Carolina statute requiring such guests to prove an accident was intentional or was caused by reckless disregard of rights of others in order to recover. S. C. Code, 5908.

5. Negligence § 19c—

Ordinarily, the doctrine of res ipsa loquitur does not apply when all the facts causing the injury are known and testified to by the witnesses, and the doctrine does not apply to the skidding of an automobile on the highway.

6. Automobiles § 17 — Evidence held to show that accident was caused by skidding.

Skidding of an automobile is the slipping sideways of the wheels of the car, resulting in the inability of the driver to control the movement of the car, and plaintiff may not successfully contend that the accident was not caused by skidding when his own evidence discloses that the car zig-zagged across the highway on wet pavement and ran off the road into a ditch, especially when one of plaintiff’s own witnesses testifies that the car seemed to be skidding.

Clarkson, J., dissenting.

Appeal by plaintiff from Mill, Special Judge, at September Term, 1937, of MeckleNburg.

Affirmed.

This was an action for damages for a personal injury alleged to liave been caused by tbe defendant’s negligent operation of an automobile in wbicb plaintiff was a passenger.

Tbe plaintiff alleged in ber complaint tbat tbe defendant drove tbe automobile, in wbicb sbe and others were riding, off tbe bigbway, in tbe State of South Carolina, and caused it to overturn in a ditch, resulting in ber injury, and tbat this was due to tbe negligence of tbe defendant “in tbat while driving at an excessive rate of speed on a perfectly straight bigbway, in the daytime, and with no traffic or obstruction of any kind in front of him, be drove bis car in such a reckless and negligent manner, without keeping a lookout to see tbat be kept it on tbe pavement, tbat said automobile ran off tbe bard-surface bigbway and turned completely over in tbe adjacent ditch.” ■

Tbe plaintiff further alleged tbat there-was an agreement between tbe defendant and those riding in tbe automobile for tbe payment of tbe expenses of tbe trip.

Tbe defendant denied all allegations of negligence.

Tbe evidence offered by tbe plaintiff showed tbe material facts of tbe occurrence to be as follows :

One K. W. Selden testified tbat in March, 1935, be and plaintiff were employed by tbe Parks Cramer Company in Charlotte, North Carolina, and tbat be and bis wife and tbe plaintiff desiring to go to Charleston, South Carolina, be made tbe following agreement with tbe defendant:

*825“I entered into an agreement with tbe defendant to carry my party down to Charleston and back. Tbe agreement was tbat Mrs. Selden and I were to furnish tbe lunch; Mr. Wells was to furnish the automobile, and we would divide the expense — the gas and oil.” The defendant’s sister was also in the party. They left Charlotte about 4 a.m., and the defendant said he had been out the night before and had only been in bed an hour and a half. This witness further testified the accident occurred about three miles south of Camden, South Carolina, and he described what happened in the following language: “As we passed through Camden we had run into a little shower, and we ran out.of the shower and hit the concrete road, which was wet. I was watching the road and the speedometer, and all of a sudden the ear started that way, to my right. I was sitting in the front seat with the driver. The car went to my right, then it cut across to the left, then cut across to the right, and went off the highway and turned over. I don’t know how many times it turned over, but I think it was one and a half times'. We landed with the wheels in the air. The road was level and straight. My best recollection is that it was the standard width. . . . When the car ■cut to the left the second time, he (defendant) made the remark, ‘Keep steady,’ or ‘Keep your seats, I’ll straighten out in a few minutes,’ or something similar to that; just the exact words, I don’t remember.”

The plaintiff Nora Clodfelter testified as to the accident as follows: “I am the plaintiff in this action. I was in the party that Mr. Selden has been describing. I was riding in the rear seat with Mrs. Selden and Miss Wells. Mr. Selden was sitting right in front of me, in the front seat, beside Mr. Wells, the driver. I did not observe anything happen before the car got off the road. We were just talking, as usual, and the car began swerving, and it was just an instant until we went off the road, and I do not know that anything happened just in that time.”

Plaintiff further testified that they were going on a pleasure trip to Charleston to see the Magnolia Gardens and spend the day there.

Mrs. K. W. Selden testified she was riding in the back seat of the car, on the left, and plaintiff on the right, with Miss Hazel Wells between them. “It happened so quickly — the car, just all of a sudden, started going first to one side and then to the other, without any warning. It went to the right, then to the left, and then to the right, and turned over. The car did not get off the hard-surface until it turned over. . . . The ear suddenly started going this way, zig-zagging first to the right and then to the left, and then to the right. Q. And it seemed to be skidding? A. Yes. And the roads were wet. ... I did not notice that the driver of the car had any difficulty in controlling it on the way down to where the accident happened.”

At the conclusion of plaintiff’s evidence, defendant’s motion for judgment of nonsuit was allowed, and plaintiff appealed.

*826 Cansler & Cansler for plaintiff.

Tillett, Tillett & Kennedy and H. B. Campbell for defendant.

DeviN, J.

Tbe plaintiff’s action is grounded on negligence, with tbe burden imposed upon ber of affirmatively proving tbe allegations of ber complaint. It is apparent that sbe bas failed to offer sufficient evidence to entitle ber to bave ber case submitted to tbe jury, unless tbe fact of tbe accident itself affords some evidence of negligence, or is sufficient to require tbe submission of tbe case to tbe jury under tbe doctrine of res ipsa loquitur.

Neither of tbe allegations of negligence in tbe complaint was supported by any evidence. There was no evidence of excessive speed (York v. York, ante, 695), nor even of tbe rate of speed, though plaintiff’s witness, who was seated beside tbe driver, testified be was looking at tbe speedometer. There was no evidence of failure to exercise due care in tbe operation of tbe car, or to keep a proper lookout. There was no other traffic, tbe road was straight, of standard width, paved. There was no defect in tbe automobile or its tires. It bad rained at intervals and tbe road was wet. All tbe facts of tbe occurrence and of tbe conduct of tbe defendant were testified to by tbe plaintiff and two other witnesses who were with ber in tbe car at tbe time. Tbe suggestion that defendant bad not bad adequate sleep tbe previous night is met by plaintiff’s evidence that be was apparently alert at tbe time of tbe accident and said before tbe car ran off tbe road, “Keep steady, I’ll straighten out.”

Tbe accident occurred in tbe State of South Carolina, and therefore tbe question of defendant’s liability for negligence must be determined by tbe law of that State. Wise v. Hollowell, 205 N. C., 286, 171 S. E., 82. It is elementary that matters of substantive law are controlled by tbe law of tbe place — tbe lex loci — but that matters of procedure are governed by tbe law of tbe forum — tbe lex fori. Wigmore on Evi., sec. 5. Under this principle tbe methods b,y which tbe parties may prove tbe truth of their assertions, tbe production of evidence, as well as tbe rules for tbe submission of tbe evidence to tbe jury, are matters of procedure, and hence governed by tbe law of tbe forum. 5 R. C. L., sec. 136; 12 C. J., 485; 3 Beale Conflict of Laws, sec. 377.1' et seq. So that whether tbe evidence offered was sufficient to require its submission to tbe jury under tbe doctrine of res ipsa loquitur was a matter to be determined in accordance with tbe law prevailing in this jurisdiction. Harrison v. R. R., 168 N. C., 382, 84 S. E., 519; 11 Am. Jur., sec. 203; 78 A. L. R., 883; 89 A. L. R., 1278.

Tbe statute law of South Carolina relative to liability for injury to guests resulting from tbe operation of an automobile contains this *827provision: “No person transported by tbe owner or operator of a motor vehicle as Ms guest without payment for such transportation shall have a cause of action for damages against such automobile, its owner or operator, for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.” South Carolina Code, sec. 5908.

The defendant calls attention to this statute and contends that in any event the burden was on the plaintiff to show, in respect to a gratuitous guest, that the injury complained of was intentionally inflicted or was the result of heedless or reckless disregard of the rights of others. Wright v. Pettus, 209 N. C., 732, 184 S. E., 494; Wise v. Hollowell, supra. But the plaintiff’s evidence is susceptible of reasonable inferences favorable to her contention that there was a sufficiently definite agreement on the part of the defendant to transport Selden’s party (including plaintiff) to Charleston and back for the consideration of furnishing the lunch and dividing the expense of gasoline and oil. The question of what constitutes a “guest without payment” for transportation in an automobile, within the meaning of the above quoted statute, does not seem to have been considered by the' South Carolina Court. However, it is stated in Fulghum v. Bleakley, 177 S. C., 286, 181 S. E., 30, that the South Carolina statute is an exact copy of a statute in force in the State of Connecticut, and the construction put upon it by the Supreme Court of the latter state supports plaintiff’s contention on this point. Kruy v. Smith, 108 Conn., 628; Russell v. Parles, 115 Conn., 687; Gage v. Chapin Motors, 115 Conn., 546; Chaplowe v. Powsner, 119 Conn., 188. The same conclusion is reached in McGuire v. Armstrong, 268 Mich., 152, 255 N. W., 745, where the word “guest” in a similar statute is construed. See, also, Campbell v. Casualty Co., ante, 65. Other cases on the subject will be found collected in 95 A. L. R., 1180.

Coming back to the determinative question presented by the appeal, whether the doctrine of res ipsa loquitur applies to the facts of this case, it seems to have been definitely settled in North Carolina that this principle does not apply to the skidding of an automobile resulting in injury to a passenger. It was so held in Springs v. Doll, 197 N. C., 240, 148 S. E., 251, and reaffirmed in Butner v. Whitlow, 201 N. C., 749, 161 S. E., 389, and Waller v. Hipp, 208 N. C., 117, 179 S. E., 428.

The applicability of res ipsa loquitur to particular cases has been many times discussed in the decisions of this Court, ever since Judge Gaston, in Ellis v. R. R., 24 N. C., 138, first applied the rule, and the doctrine does not now require restatement or further elaboration. Womble v. Grocery Co., 135 N. C., 474, 47 S. E., 493; Stewart v. Carpet Co., *828 138 N. C., 60, 50 S. E., 562; Ross v. Cotton Mills, 140 N. C., 115, 52 S. E., 121; Perry v. Mfg. Co., 176 N. C., 68, 97 S. E., 162; White v. Hines, 182 N. C., 275, 109 S. E., 31; Bryant v. Construction Co., 197 N. C., 639, 150 S. E., 122; Armstrong v. Spinning Co., 205 N. C., 553, 172 S. E., 313; Wilson v. Perkins, 211 N. C., 110; Sweeney v. Erving, 228 U. S., 233; Weston v. Hillyer, 160 S. C., 541, 159 S. E., 390; 45 C. J., sec. 768. The application of tbe rule to injury resulting from the use of machinery or complicated tools or apparatus has been extended to a variety of situations where the cause of the injury is inaccessible to the party injured, but accessible to the party having exclusive control or management of the instrumentality, but ordinarily it does not apply when all the facts causing the accident are known and testified to by the witnesses at the trial. Baldwin v. Smitherman, 171 N. C., 772, 88 S. E., 854. The general rule stated in Huddy on Automobiles, sec. 373, is quoted with approval in Springs v. Doll, supra, as follows: “The mere fact of the skidding of a car is not of itself such evidence of negligence as to render the owner liable for an injury in consequence thereof.” And in Linden v. Miller, 172 Wis., 20, 177 N. W., 909, it was said: “Skidding may occur without fault, and when it does occur it may likewise continue without fault for a considerable space and time. It means partial or complete loss of control of the car under circumstances not necessarily implying negligence. Hence, plaintiff’s claim that the doctrine of res ipsa loquitur applies to the present situation is not well founded. In order to make the doctrine res ipsa loquitur apply, it must be held that skidding itself implies negligence. This it does not do. It is a well known physical fact that cars skid on greasy or slippery roads without fault either on account of the manner of handling the car or on account of its being there.”

The contention that the facts here do not present a case of skidding is untenable. There is no other reasonable conclusion to be reached but that the wheels of the automobile slipped sideways on the pavement, resulting in inability of the driver to control the movement of the car. This is the meaning of the word “skidding” as applied to the operation of automobiles. One of plaintiff’s witnesses testified in the trial that the car seemed to be skidding.

Upon consideration of the record before us, we conclude that the principle of res ipsa loquitur does not apply to. the facts disclosed, and that there being no evidence of negligence, the judgment of nonsuit was properly entered.

Affirmed.

ClaeksoN, J.,

dissenting:

Conceding that the principle of res ipsa loquitur does not apply, yet I think there was sufficient evidence to be *829submitted to the jury on the principle that the injury to plaintiff was caused by the negligence of defendant. I think there was evidence to show that in operating the car there was “heedlessness or his reckless disregard of the rights of others,” causing the injury. The operator ran into a shower — the road was wet. “The car went to the right, then it cut across to the left, then cut across to the right, and went off the highway and turned over.” It turned over one and a half times and landed with the wheels in the air, indicating that it was being operated at a high and dangerous rate of speed and in a heedless and reckless manner. At least this was evidence for the jury to consider on the issue of negligence. The car “zig-zagged” first to the right and then to the left and then again to the right — it was skidding on the wet road. The evidence was sufficient to be submitted to the jury as to defendant’s negligence and also as to whether, plaintiff was a guest under the South Carolina statute, in which state plaintiff was injured.

I think that such an interpretation should be given to evidence of this kind, so that a jury should pass on the facts and not this Court. It is necessary, in the preservation of life and limb, that the drivers of cars should be held to an accountability in their driving under such evidence here disclosed. Last year we had 1,123 killed and 7,990 injured in automobile wrecks in 7,413 accidents in North Carolina. Over 40,000 were killed in the nation in automobile wrecks. In one year more were killed in this nation than were killed in the "World War. This wreckage is left for the taxpayers and others to care for. It is a matter of common knowledge that premiums are paid to liability companies for the protection of guests in cars, unde? well settled law in this State, who are injured when there is negligence on the part of the driver. I think the judgment of nonsuit should be reversed.