{ "id": 8596177, "name": "BOYD SAMUELS v. D. W. BOWERS, t/a D. W. BOWERS LUMBER COMPANY", "name_abbreviation": "Samuels v. Bowers", "decision_date": "1950-05-24", "docket_number": "", "first_page": "149", "last_page": "154", "citations": [ { "type": "official", "cite": "232 N.C. 149" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "29 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597672 ], "opinion_index": 0, "case_paths": [ "/nc/224/0211-01" ] }, { "cite": "303 Ill. App. 574", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3345014 ], "opinion_index": 0, "case_paths": [ "/ill-app/303/0574-01" ] }, { "cite": "199 Minn. 543", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1738397 ], "opinion_index": 0, "case_paths": [ "/minn/199/0543-01" ] }, { "cite": "18 S.E. 2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11307522 ], "opinion_index": 0, "case_paths": [ "/nc/220/0648-01" ] }, { "cite": "45 S.E. 2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626701 ], "opinion_index": 0, "case_paths": [ "/nc/228/0433-01" ] }, { "cite": "2 S.E. 2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630519 ], "opinion_index": 0, "case_paths": [ "/nc/215/0510-01" ] }, { "cite": "1 S.E. 2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628302 ], "opinion_index": 0, "case_paths": [ "/nc/215/0095-01" ] }, { "cite": "194 S.E. 486", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618741 ], "opinion_index": 0, "case_paths": [ "/nc/212/0695-01" ] }, { "cite": "185 S.E. 446", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622966 ], "opinion_index": 0, "case_paths": [ "/nc/210/0060-01" ] }, { "cite": "169 S.E. 143", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622361 ], "opinion_index": 0, "case_paths": [ "/nc/204/0573-01" ] }, { "cite": "195 Wis. 565", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8696744 ], "opinion_index": 0, "case_paths": [ "/wis/195/0565-01" ] }, { "cite": "163 S.E. 447", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627467 ], "opinion_index": 0, "case_paths": [ "/nc/202/0554-01" ] }, { "cite": "156 S.E. 159", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614768 ], "opinion_index": 0, "case_paths": [ "/nc/200/0044-01" ] }, { "cite": "198 S.E. 637", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629367 ], "opinion_index": 0, "case_paths": [ "/nc/214/0188-01" ] }, { "cite": "37 S.E. 2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614414 ], "opinion_index": 0, "case_paths": [ "/nc/226/0146-01" ] }, { "cite": "51 S.E. 2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 707", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167679 ], "opinion_index": 0, "case_paths": [ "/nc/229/0707-01" ] }, { "cite": "53 S.E. 2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630235 ], "opinion_index": 0, "case_paths": [ "/nc/230/0392-01" ] } ], "analysis": { "cardinality": 647, "char_count": 13758, "ocr_confidence": 0.499, "pagerank": { "raw": 5.085206071483798e-07, "percentile": 0.9379566144589897 }, "sha256": "fa14a44d6f1f42f3737257f10b574caf76211d5554dffc4e43b816c16966eec0", "simhash": "1:5c6c69be4cfd7cfc", "word_count": 2371 }, "last_updated": "2023-07-14T20:42:59.145817+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BOYD SAMUELS v. D. W. BOWERS, t/a D. W. BOWERS LUMBER COMPANY." ], "opinions": [ { "text": "DeviN, J.\nThat there was evidence of negligence on the part of the defendant proximately causing plaintiff\u2019s injury was not controverted, but the defendant contends that the nonsuit should be sustained on the ground of contributory negligence on the part of the plaintiff, for that the plaintiff failed to exercise due care and to take proper precaution for his own safety by adequately warning the defendant of the dangerous manner in which he was driving, or making effort to stop or leave the car.\nThe rule is well settled that involuntary nonsuit on the ground of the contributory negligence of the plaintiff may be allowed only when the plaintiff\u2019s evidence, considered in the light most favorable for him, establishes his own negligence as a proximate contributing cause of the injury so clearly that no other conclusion reasonably can be drawn therefrom. Collingwood v. R. R., post, 192; Winfield v. Smith, 230 N.C. 392, 53 S.E. 2d 251; Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307; Hobbs v. Drewer, 226 N.C. 146, 37 S.E. 2d 121; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637.\nPlaintiff\u2019s evidence tended to show that plaintiff accompanied defendant in defendant\u2019s half-ton pick-up truck on a business trip of defendant from Thomasville to Rockingham, a distance of some 80 miles. On the return trip it was misting rain and the road was wet, and the defendant was driving around 60 to 65 miles per hour. Half a mile beyond an intersection of highways the truck skidded when going around a curve and turned over, injuring plaintiff. Plaintiff testified he cautioned the defendant several times to reduce his speed, twice shortly before the accident, but defendant replied he had been driving 25 years and \u201cnever hit anybody yet.\u201d Plaintiff had known defendant 15 years and been on trips with him before. On this trip defendant drove \u201cpretty fast\u201d all the way back, except when driving through towns or at intersections. Plaintiff cautioned him to reduce his speed on account of the condition of the road about 10 miles before the accident happened, and cautioned him \u201cat the crossroads beyond Troy\u201d \u2014 told him he was driving too fast. Plaintiff says he also cautioned him at the intersection of highways 49 and 109. Plaintiff did not try to take over control or get out of the truck as it was defendant\u2019s truck, and that was plaintiff\u2019s only way of getting back home. They stopped only once and that was at the Uwharrie River bridge, a considerable distance from plaintiff\u2019s home. Neither plaintiff nor defendant had taken any intoxicating liquor. Plaintiff was an employed person, 53 years old, 5 feet 8 inches tall, and weighing 270 pounds. ,>\nThere was no evidence that defendant was an inexperienced or incompetent driver, or that his driving on this occasion was reckless, or that he had been drinking. The speed limit fixed by statute in force at the time applicable to defendant\u2019s half-ton truck was 55 miles per hour, though weather conditions might require a lower speed. G.S. 20-141.\nThe question of the contributory negligence of a guest passenger in an automobile has been considered by this Court in a number of cases. In all of them except one it was held the question was one for the jury if there was sufficient evidence offered to require submission of an issue thereon.\nIn Nettles v. Rea, 200 N.C. 44, 156 S.E. 159, where the driver of an automobile was making 70 miles an hour on a mountain road and around curves in spite of passenger\u2019s protest, motion to nonsuit was denied, and no error was found in the judgment on verdict for plaintiff on issues of negligence and contributory negligence. In King v. Pope, 202 N.C. 554, 163 S.E. 447, where plaintiff was a guest passenger in an automobile driven by defendant in reckless manner after protest, it was held the question of contributory negligence was one for the jury. There the court used this language: \u201cThe defendant contends \u2018the court should have held plaintiff negligent as a matter of law in not demanding and insisting that the defendant stop the automobile and permit him, the plaintiff, to get out of the same.\u2019 We cannot so hold. Under the facts and circumstances of the case, we think it was a question of fact for the jury to determine.\u201d In that case the Court quoted with approval from Krause v. Hall, 195 Wis. 565, the following. \u201cShould the host persist in his reckless driving, the guest may ask to be let out of the car, but that he should do so under all circumstances has never been held his duty as a matter of law, so far as we are advised.\u201d\nIn Norfleet v. Hall, 204 N.C. 573, 169 S.E. 143, the defendant was driving at excessive speed without protest from the passenger. No issue of contributory negligence was submitted, doubtless due to the circumstances of that case showing sudden acceleration of speed by the driver, and the judgment for plaintiff was affirmed, though two Justices dissented.\nIn Taylor v. Caudle, 210 N.C. 60, 185 S.E. 446, it was held the question of contributory negligence based on evidence that plaintiff\u2019s intestate entered the car knowing the reputation of the driver as an unsafe and reckless driver, was for the jury.\nIn York v. York, 212 N.C. 695, 194 S.E. 486, the evidence disclosed that the defendant drove at a high and dangerous speed in face of a fast approaching storm and rain and into a curve with resultant injury to plaintiff passenger who had made no protest. The trial court refused to submit an issue of contributory negligence, and this Court found no error. Three Justices dissented on the ground that the issue of contributory negligence should have been submitted to the jury.\nIn Mason v. Johnston, 215 N.C. 95, 1 S.E. 2d 379, the plaintiff was a guest passenger on a motorcycle driven at a high rate of speed without protest. This Court held the question of contributory negligence of the passenger was a question for the jury, and could not be so declared as a matter of law.\nIn Groome v. Davis, 215 N.C. 510, 2 S.E. 2d 771, it was held the failure of a guest passenger in an automobile driven 65 to 70 miles per hour to remonstrate would not constitute contributory negligence as a matter of law but was a question for the jury.\nThe latest case considered by this Court on this subject is Hill v. Lopez, 228 N.C. 433, 45 S.E. 2d 539. There the plaintiff was a guest passenger in an automobile which was being driven at a speed of 35 miles per hour into an intersection where it was struck from the right by defendant\u2019s truck. The plaintiff did not see defendant\u2019s truck until an instant before the collision when he said, \u201cLook out! We are hit.\u201d In an opinion written by Justice Denny it was said the evidence as disclosed on this record \u201cwould not justify holding that the plaintiff was guilty of contributory negligence as a matter of law. The ruling of his Honor in this respect will be upheld.\u201d\nHowever in Bogen v. Bogen, 220 N.C. 648, 18 S.E. 2d 162, in a well considered opinion written for the Court by Justice Barnhill, it was held nonsuit on the ground of the contributory negligence of plaintiff, a passenger in an automobile driven by her husband, should have been allowed. This decision was based on the following facts stated in the opinion: \u201cHere plaintiff became a guest upon the automobile knowing at the time that he habitually drove in a reckless manner at high rate of speed without keeping proper lookout, and that he would ignore any protest or remonstrance she might make, and then failed to abandon the journey and return borne on any one of tbe numerous occasions sbe had opportunity so to do after bis continued recklessness became apparent.\u201d\nIn the case at bar the facts were materially different. Here, considering plaintiff\u2019s evidence in the light most favorable for him, the inference is permissible that defendant was an experienced and competent driver, sober, and reasonably careful of traffic regulations though driving \u201cpretty fast,\u201d and in excess of the limit fixed by law, and that in response to plaintiff\u2019s remonstrance that be was driving too fast defendant reassured him by saying in effect be bad never bad an accident. Thorstad v. Doyle, 199 Minn. 543.\nThe principle is generally recognized that when a gratuitous passenger becomes aware that the automobile in which be is riding is being persistently driven at an excessive and dangerous speed, the duty devolves upon him in the exercise of due care for bis own safety to caution the drive!, and, if bis warning is disregarded and speed unaltered, to request that the automobile be stopped and be be permitted to leave the car. Bogen v. Bogen, supra; 4 Blashfield Cyc. Auto Law, sec. 2415; 5 Am. Jur. 772. He may not acquiesce in a continued course of negligent conduct on the part of the driver and then claim damages from him for injury proximately resulting therefrom. But this duty is not absolute and is dependent on circumstances. 4 Blashfield, pg. 568; O'Neal v. Caffarello, 303 Ill. App. 574. Where conflicting inferences may be drawn from the circumstances, whether the failure of the passenger to avail himself of opportunity for affirmative action for bis own safety should constitute contributory negligence is a matter for the jury.\nIn 4 Blashfield, pg. 578, the law on this point is stated as follows: \u201cEven so, however, it is not the duty of a guest, under all circumstances of negligent or reckless driving, to ask to be let out, nor is it necessarily contributory negligence as a matter of law for a passenger not to insist upon being permitted to leave an automobile driven at excessive speed. ... A guest who feels himself endangered by the excessive speed of the vehicle cannot ordinarily be expected to leap from the car while it is still in rapid motion. . . . And even if there is a reasonable opportunity to leave the car, failure to leave is not negligence unless a person in the exercise of ordinary care would have done so under the circumstances.\u201d\nThe passenger is required to use that care for bis own safety that a reasonably prudent person would employ under same or similar circumstances. Whether be has measured up to this standard is ordinarily a question for the jury. Contributory negligence when interposed as a defense to an action for damages for personal injury involves the element of proximate cause, and the determination of the proximate cause of an injury from conflicting inferences is a matter for the jury. In Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E. 2d 740, in an opinion by Justice Barnhill, it was said: \u201cIt is only wben the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not. But that is rarely the case. Hence, what is the proximate cause of an injury is ordinarily a question for the jury.\u201d\nWhile we think there was evidence sufficient to require submission of the issue of contributory negligence, it was not of that conclusive character which would justify the court in declaring as a matter of law that plaintiff was barred of recovery on this ground.\nThe judgment of nonsuit is\nReversed.", "type": "majority", "author": "DeviN, J." } ], "attorneys": [ "Hubert H. Olive and W. H. Steed for plaintiff, appellant.", "Don A. Walser for defendant, appellee." ], "corrections": "", "head_matter": "BOYD SAMUELS v. D. W. BOWERS, t/a D. W. BOWERS LUMBER COMPANY.\n(Filed 24 May, 1950.)\n1. Negligence \u00a7 19c\u2014\nNonsuit on the ground of contributory negligence of plaintiff may be allowed only when the plaintiff's evidence, considered in the light most favorable for him, establishes his own negligence as a proximate contributing cause of the injury so clearly that no other conclusion reasonably can be drawn therefrom.\n2. Automobiles \u00a7 20a \u2014 Gratuitous passenger held not contributorily negligent as matter of law in failing to refuse to continue trip.\nThe evidence tended to show that plaintiff was a guest in a truck being driven by defendant, that it was misting rain and the road was wet, that defendant was driving at an excessive speed of 60 to 65 miles per hour, G.S. 20-141, but that defendant was sober and was an experienced and competent driver, and that plaintiff remonstrated several times as to speed and was reassured by defendant that he had been driving for twenty-five years without an accident. Held: In plaintiff\u2019s suit to recover for injuries sustained when the car skidded and turned over on the highway, plaintiff is not guilty of contributory negligence as a matter of law in failing to request that defendant stop the car and permit him to get out, but the issue of contributory negligence should have been submitted to the jury.\n3. Same\u2014\nWhere the driver of a car persistently operates it at a dangerous and excessive speed, the duty devolves upon a gratuitous passenger, in the exercise of that degree of care for his own safety which a reasonably prudent person would employ tinder similar circumstances, to caution the driver, and if his warning is disregarded, to request that the automobile be stopped and that he be permitted to leave the car, but his failure to do so-will not be held contributory negligence as a matter of law if conflicting inferences can be drawn from tlie circumstances, the question being, ordinarily, for the jury to determine.\nAppeal by plaintiff from Sink, J., February Term, 1950, of DavidsoN.\nReversed.\nThis was an action to recover damages for personal injury alleged to have been caused by the negligence of the defendant in the operation of a motor vehicle. The plaintiff at the request of the defendant was a passenger in a pick-up truck driven by the defendant when, due to defendant\u2019s negligent driving, the truck turned over and the plaintiff was injured.\nAt the close of plaintiff\u2019s evidence, defendant\u2019s motion for judgment of nonsuit was allowed and plaintiff excepted and appealed.\nHubert H. Olive and W. H. Steed for plaintiff, appellant.\nDon A. Walser for defendant, appellee." }, "file_name": "0149-01", "first_page_order": 197, "last_page_order": 202 }