{ "id": 8567607, "name": "HUGH DINKINS, Administrator of the Estate of JAMES LLOYD CRANFILL, v. WILLIAM GRADY CARLTON; and JAMES WESLEY WILLIAMS, By his Next Friend, BETTY WILLIAMS, v. WILLIAM GRADY CARLTON", "name_abbreviation": "Dinkins v. Carlton", "decision_date": "1961-06-16", "docket_number": "", "first_page": "137", "last_page": "145", "citations": [ { "type": "official", "cite": "255 N.C. 137" } ], "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": "88 S.E. 2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616291 ], "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0450-01" ] }, { "cite": "80 S.E. 2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627410 ], "opinion_index": 0, "case_paths": [ "/nc/239/0487-01" ] }, { "cite": "156 S.E. 508", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618024 ], "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc/200/0177-01" ] }, { "cite": "78 S.E. 2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626558 ], "opinion_index": 0, "case_paths": [ "/nc/239/0279-01" ] }, { "cite": "59 S.E. 2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596177 ], "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0149-01" ] }, { "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": "98 S.E. 2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625839 ], "opinion_index": 0, "case_paths": [ "/nc/246/0257-01" ] } ], "analysis": { "cardinality": 847, "char_count": 21293, "ocr_confidence": 0.562, "pagerank": { "raw": 6.670306493554618e-07, "percentile": 0.9624883535681038 }, "sha256": "394d48acc8b3eb9adc670e5457757cb26c97db88e5361e710d36be26977951e9", "simhash": "1:8562d524ecc0007f", "word_count": 3588 }, "last_updated": "2023-07-14T18:41:58.690444+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HUGH DINKINS, Administrator of the Estate of JAMES LLOYD CRANFILL, v. WILLIAM GRADY CARLTON and JAMES WESLEY WILLIAMS, By his Next Friend, BETTY WILLIAMS, v. WILLIAM GRADY CARLTON." ], "opinions": [ { "text": "Bobbitt, J.\nThe only assignments of error are based on defendant\u2019s exceptions to the overruling of his motions for judgment of nonsuit.\nThere was plenary evidence as to defendant\u2019s actionable negligence. While defendant, in his answers, denied plaintiffs\u2019 allegations as to his negligence, he now asserts the evidence discloses he was so incapacitated or reckless by reason of intoxication that Cranfill and Williams were contributorily negligent as a matter of law in riding with him when they knew or should have known it was hazardous to do so.\nDefendant, in his brief, states this one question is presented, viz: \u201cDid the trial Court err in overruling defendant\u2019s motion for judgment of nonsuit on the grounds that plaintiff\u2019s intestate and the plaintiff Williams were guilty of contributory negligence as a matter of law in continuing to ride with the defendant after acquiring knowledge of defendant\u2019s intoxication?\u201d\nPertinent general principles have been stated as follows: \u201cA passenger or guest has a right to assume that the driver of the automobile will exercise proper care and caution, until he has notice to the contrary. His acceptance of the driver\u2019s manner of operating the vehicle ordinarily is not contributory negligence unless the driver\u2019s fault or incompetence is so obvious as to demand effort on the passenger\u2019s part to abate danger.\u201d 5A Am. Jur., Automobiles and Highway Traffic \u00a7 789. Again: \u201cOne who rides in an automobile driven by another whom he knows or should known (sic) to be a careless or reckless driver ... is guilty of contributory negligence such as will preclude his recovery if his conduct in voluntarily riding with the driver amounts to a failure to exercise reasonable or ordinary care for his own safety. . . . Mere knowledge on the part of the passenger of reckless driving by the operator of the car does not ipso facto charge him with contributory negligence or bar his recovery, if he used the degree of care that an ordinarily prudent man would have used under like or similar circumstances.\u201d 5A Am. Jur., Automobiles and Highway Traffic \u00a7 790. Again: \u201cWhile the mere circumstance of having entered an automobile driven by an intoxicated person is not of itself determinative of the passenger\u2019s contributory negligence, if one enters a car with knowledge of the driver\u2019s intoxicated condition and thereafter rides with him under such conditions as would impel a reasonably prudent man to take all possible measures to stop or leave the vehicle, he may be found guilty of contributory negligence and barred from recovery against the driver or owner of the car.\u201d 5A Am. Jur., Automobiles and Highway Traffic \u00a7 792.\nOur decisions, cited and reviewed by Parker, J., in Bell v. Maxwell, 246 N.C. 257, 98 S.E. 2d 33, are in substantial accord. In all, except Bogen v. Bogen, 220 N.C. 648, 18 S.E. 2d 162, this Court held the issue, whether the guest passenger was guilty of contributory negligence, was for jury determination.\nAs stated by Devin, J. (later C.J.), in Samuels v. Bowers, 232 N.C. 149, 153, 59 S.E. 2d 787: \u201cThe passenger is required to use that care for his own safety that a reasonably prudent person would employ under same or similar circumstances. Whether he 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.\u201d In 5 Am. Jur., Automobiles \u00a7 712, it is stated: \u201cThe duty of an invited passenger in an automobile is so dependent upon special circumstances, and upon such varied and conflicting notions of the propriety of interference in the management of the automobile, that in cases of accident the courts are loath to hold such a passenger guilty of contributory negligence as a matter of law. Ordinarily, the question of the contributory negligence of a guest in an automobile involved in a collision, is for the jury to decide in the light of all the surrounding facts and circumstances.\u201d\nIn Bogen v. Bogen, supra, where a guest passenger was held con-tributorily negligent as a matter of law, the opinion of Barnhill, J. (later C.J.), contains this statement as to the factual situation under consideration: \u201cHere, plaintiff became a guest upon the automobile of defendant, knowing at the time that he habitually drives in a reckless manner at a high rate of speed without keeping a proper lookout and that he would ignore any protest or remonstrance she might malee, and then failed to abandon the journey and return home on any one of the numerous occasions she had opportunity so to do after his continued recklessness became apparent.\u201d Plaintiff\u2019s testimony unequivocally and fully supported this statement.\nThe evidence must be considered in the light of these two well-settled principles: 1. Discrepancies and contradictions in the evidence, even though such occur in the evidence offered in behalf of plaintiff, are to be resolved by the jury, not by the court. Cozart v. Hudson, 239 N.C. 279, 78 S.E. 2d 881; Bell v. Maxwell, supra. 2. \u201c (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.\u201d Samuels v. Bowers, supra.\nThe evidence tends to show the facts narrated below.\nWhen the mishap occurred, defendant, then 29, was driving. Williams, then 16, was on the front seat, to the driver\u2019s right. Cranfill, then 17, and Joe Williams, then 18 or 19, were on the back seat. All were friends. They were on their way from Yadkinville to the \u201cNight Spot\u201d in Jonesville.\nThe tar and gravel road on which they were traveling, known as Center Road, was \u201cright narrow\u201d and had \u201ca lot of curves.\u201d At a curve, the car \u201cwent off on the right side\u201d and \u201cstarted sliding and slid about 200 feet\u201d before turning over. Williams and Cranfill were thrown out of the car.\nJoe Williams had \u201cjust finished high school\u201d and had a job in Yadkinville at the Yadkin Cafe. Williams had just completed the tenth grade and was unemployed. Cranfill was \u201cin the eleventh grade.\u201d There is no evidence as to defendant\u2019s education or occupation.\nThe Williams boys lived with their parents at Pilot View, about three miles from Yadkinville. Each had a driver\u2019s license. Williams had gotten his driver\u2019s license \u201cabout two weeks before the accident.\u201d\nJoe Williams went to work at the Yadkin Cafe about 12:00 o\u2019clock (midnight) and got off around 3:00 a.m. He had driven to work in his father\u2019s car. When he got off work, he started home. He drove his father\u2019s car around the block and stopped in front of the Yadkin Cafe. Williams and Cranfill were in Yadkinville, waiting for Joe Williams \u201cto get off work.\u201d Until he got off work and had started home, Joe Williams had not seen defendant.\nWhen Joe Williams stopped, Williams and Cranfill started to get in the Williams car. At that time, defendant pulled up behind the Williams car. Williams went back to see what defendant wanted. Defendant asked if \u201cthey\u201d wanted to go to the \u201cNight Spot\u201d in Jonesville. Williams asked defendant who was going to drive. Defendant replied: \u201cI don\u2019t care; you can if you want to.\u201d The Williams boys and Cranfill conferred and decided to go to Jonesville in defendant\u2019s car. Joe Williams parked his father\u2019s car in Yadkinville. When they left Yadkinville in defendant\u2019s car, about 3:30 a.m., Williams was driving. Defendant was on the front seat, to the driver\u2019s right. Cranfill was on the back seat, left side, and Joe Williams was on the back seat, right side.\nWilliams drove defendant\u2019s car until they reached Mitchell Chapel Church, some four to six miles from Yadkinville and some six to eight miles from Jonesville. Williams drove into the churchyard and stopped. He did so because defendant told him \u201cto pull over and let him drive.\u201d Williams had been driving at 40 to 45 miles an hour. Defendant had complained that Williams was not driving fast enough. Defendant had told Williams \u201cto press the accelerator down.\u201d He \u201cwould press it down but then take (his) foot off.\u201d The reason defendant gave for telling Williams to stop was this: \u201cI want to show you how to drive.\u201d\nIn the churchyard, Williams got out of the car, defendant moved over into the driver\u2019s seat and Williams walked around the car and got back in on the front seat, to the right of the driver. Cranfill and Joe Williams did not change their positions. Defendant started driving. He had driven somewhere between two and five miles (wide variation in estimates) before the mishap occurred.\nDefendant \u201cdrove all right at first.\u201d He kept on increasing his speed until he got up to 60 miles an hour or more. Before the mishap occurred, defendant had run off the road twice. Williams testified: \u201cWhen I say that Grady got off the road twice, I just mean he ran off the edge of the road. The wheels were off the hard surface, on the shoulder. He just ran the car off the road and cut it back on.\u201d When these two incidents occurred, defendant slowed down but picked up speed again.\nAt the churchyard, neither the Williams boys nor Cranfill expressed any objection to defendant\u2019s decision that he would drive from there to Jonesville. While defendant was driving, neither of the Williams boys nor Cranfill told defendant to slow down or otherwise objected to the way he was driving. Williams testified he did not make any objections to Grady\u2019s driving \u201cbecause it wasn\u2019t my car.\u201d Joe Williams testified: \u201cIt was his (defendant\u2019s) car. What could we do about it?\u201d\nThe evidence relating to defendant\u2019s intoxication is narrated below.\nWilliams testified he had seen defendant in Yadkinville, at a \u201cclosed\u201d filling station, between 12:00 o\u2019clock (midnight) and 1:00 a.m.; that he and Cranfill, at that time, got into defendant\u2019s car but \u201cdid not go anywhere\u201d; that he then \u201csmelled alcohol on (defendant)\u201d; that he did not see defendant drink any liquor or know where defendant had got liquor; that defendant left about 1:00 a.m.; that he did not know where defendant went; and that he did not see defendant again until around 3.30 a.m.\nAn investigating State Highway Patrolman testified to a conversation he had with defendant at the hospital in Elkin about 5:30 a.m. He testified: \u201cIt was obvious to me when I talked to Grady Carlton that morning at around 5:30 A.M. that he had been drinking, as the odor was on him. The odor on him was clear. You could tell clearly that he had been drinking. He said he had been drinking earlier in the night but was not intoxicated when he wrecked.\u201d Again: \u201cHe stated that he had been out all night but not with these boys. He said that he had been drinking some beer at a tavern or a joint in Forsyth County, but he was not intoxicated at the time of the accident. However, it was obvious to me that he had been drinking.\u201d About 6:00 or 6:30, the patrolman drove defendant to Yadkinville, taking him home. The patrolman testified: \u201cI did not notice the smell of alcohol on Grady in the car when we were driving back to Yadkin-ville. Grady sat on the front seat there and I talked to him all the way back. I noticed the smell of alcohol on him when I first got up with him in the hospital. I sat down right beside him on a bench and was talking to him.\u201d Again: \u201c(H)e (defendant) was not drunk'when I put him out at his home that morning.\u201d\nJoe Williams testified: \u201cI did not see any whiskey in the car. I did not see anybody drink any whiskey. I did not see anybody drink any beer or any form of intoxicating beverage.\u201d Again: \u201cI could smell the odor of liquor on Grady that night, after we got into his car, and before we got to the church. Although I was sitting on the back seat of the car and Grady was sitting on the front seat, I could smell liquor on him when he turned around.\u201d Joe Williams testified that Cranfill, \u201con the way to Jonesville,\u201d told him \u201che saw Grady drinking whiskey while he was at the service station.\u201d\nNeither Williams nor Joe Williams nor Cranfill \u201chad had anything to drink that night.\u201d\nThere was no evidence as to prior relationships between defendant and the Williams boys or Cranfill except the simple statement that they were friends. There was no evidence that either of the Williams boys or Cranfill, on any prior occasion, had been a passenger in a car operated by defendant. There was no evidence that defendant had any prior reputation or record as a reckless driver.\nIn Yadkinville, defendant gave Williams permission to drive his car to Jonesville. Certainly, under these circumstances, it was not contributorily negligent as a matter of law for the Williams boys and Cranfill to get into defendant\u2019s car in Yadkinville for the trip to Jonesville. The more serious question is whether, after defendant had made Williams stop at Mitchell Chapel Church, Williams and Cran-fill were guilty of contributory negligence in continuing the trip with the knowledge that defendant insisted on driving from there to Jones-ville. The Williams boys and Cranfill were in high school or had just graduated. It was defendant\u2019s car. Defendant was 29. It may be inferred that the three boys deemed it both unwise and futile to object or interfere.\nTrue, the Williams boys and Cranfill could have refused to accompany defendant from Mitchell Chapel Church to Jonesville. In such case, they would have been stranded in the churchyard about 4:00 a.m. All circumstances considered, we cannot say they were contribu-torily negligent as a matter of law in remaining in the car after defendant stated he was going to take over the driving. Nor do we think their failure to call upon him to slow down or otherwise object to the way he drove, over a comparatively short distance, may be considered contributory negligence as a matter of law. If and when it became evident that defendant was driving too fast on a narrow and crooked tar and gravel road, whether, under the circumstances, remonstrance and protest by the passengers would likely restrain defendant or would merely divert him and render their predicament more hazardous, was for jury determination. As stated by Connor, J., in Smith v. R. R., 200 N.C. 177, 182, 156 S.E. 508: \u201cIt is a matter of common knowledge to those who ride in automobiles \u2014 certainly to those who drive them \u2014 that \u2018back seat\u2019 driving often confuses a driver, and more often than otherwise, prevents him from avoiding dangers encountered on the road.\u201d Certainly, actual physical interference with the manner in which defendant was operating the car would have increased the hazard.\nWilliams testified he guessed he made this statement to an investigator: \u201cI am of the opinion that I should not have got back in the car when we stopped at the Mitchell Chapel Church.\u201d Joe Williams testified he made this statement to an investigator: \u201cI am of the opinion I should have got out of the car when we stopped in front of the Mitchell Chapel Church.\u201d He added that this was still his opinion. In retrospect, these opinions were certainly justified. However, they shed little, if any, light upon how matters reasonably appeared to Williams and Cranfill when they were in the churchyard. See Henderson v. Henderson, 239 N.C. 487, 80 S.E. 2d 383.\nUnquestionably, the evidence was sufficient to justify the submission of the contributory negligence issue in each case. This was done. The jury answered the contributory negligence issues in favor of plaintiffs. The charge of the trial court was not included in the record on appeal. Hence, it is presumed that the jury was instructed correctly on every principle of law applicable to the facts. Hatcher v. Clayton, 242 N.C. 450, 453, 88 S.E. 2d 104, and cases cited. Although sufficient to support jury findings that Williams and Cranfiill were guilty of contributory negligence, the conclusion reached is that the evidence does not establish contributory negligence as a matter of law. Hence, defendant\u2019s motions for judgments of nonsuit were properly overruled.\nNo error.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "H. Smith Williams and B. Lewis Alexander for -plaintiffs, appellees.", "Walter Zachary and Womble, Carlyle, Sandridge & Bice for defendant, appellant." ], "corrections": "", "head_matter": "HUGH DINKINS, Administrator of the Estate of JAMES LLOYD CRANFILL, v. WILLIAM GRADY CARLTON and JAMES WESLEY WILLIAMS, By his Next Friend, BETTY WILLIAMS, v. WILLIAM GRADY CARLTON.\n(Filed 16 June, 1961.)\n1. Automobiles \u00a7 49\u2014\nA passenger is required to exercise the care of an ordinarily prudent man for his own safety and he may be held contributorily negligent in voluntarily riding with a driver whom he knows to be reckless, or in failing to abandon the trip after he ascertains that the driver is intoxicated or driving in a reckless manner, when an ordinarily prudent person, under similar circumstances, would not have voluntarily undertaken the trip or would have abandoned the trip after the discovery of the recklessness of the driver.\n2. Same\u2014\nWhether a passenger is guilty of contributory negligence in failing to remonstrate with the driver in regard to the driver\u2019s excessive speed or reckless driving must be determined upon the facts of each particular ease, with consideration as to whether under the attendant circumstances remonstrance would seem to be futile and also with consideration of the fact within common knowledge that \u201cback seat driving\u201d often confuses the driver and that physical interference with the driver would increase the hazard.\n3. Same\u2014\nWhether a passenger is guilty of contributory negligence in voluntarily embarking on a trip with a driver whom he knows to be reckless, or in failing to abandon the trip after discovery that the driver was operating the vehicle in a reckless manner or while intoxicated, or in failing to remonstrate with the driver, is usually a question for the jury under the rule of the ordinary prudent man, and the conduct of the passenger in these'respects will not ordinarily be held for contributory negligence as a matter of law.\n4. Trial \u00a7 22\u2014\nDiscrepancies and contradictions, even in plaintiff\u2019s evidence, do not justify nonsuit.\n5. Negligence \u00a7 26\u2014\nNonsuit for contributory negligence is proper only when plaintiff\u2019s evidence, considered in the light most favorable to him, establishes contributory negligence as a proximate cause of the injury so clearly that no other reasonable conclusion can be drawn therefrom.\n6. Automobiles \u00a7 49\u2014 Evidence held not to disclose contributory negligence as matter of law on part of passenger in failing to abandon trip.\nThe evidence tended to show that the 29 year old defendant had drunk some intoxicant, that three teenage boys, at about 3:30 a.m., accepted his invitation to go to a neighboring town under agreement that one of the boys would drive the car, that en route defendant objected to the slowness of the driver and the car was stopped in a church yard and defendant took control of the car, that defendant drove \u201call right\u201d at first but then began to drive at excessive speed along the narrow and curving road, and twice permitted the wheels to run off the edge of the hard surface, and that some three or five miles after taking over the wheel, the car ran off the highway and turned over, resulting in the injuries in suit. There was no evidence that defendant had the reputation of a reckless driver or that any of the passengers had theretofore riden with him, and no evidence that the passengers objected to his taking over the driver\u2019s seat or that they remonstrated with him as to his manner of driving. Held: While the evidence is sufficient to require the submission to the jury of the issues of the passengers\u2019 contributory negligence, the evidence does not disclose contributory negligence on their part as a matter of law.\nAppeals by defendant from Johnston, J., December 14, 1960, Term, of YADKIN.\nOn June 13, 1959, about 4:00 a.m., a 1950 Chevrolet, owned and operated by defendant, in which James Lloyd Cranfill and James Wesley Williams were passengers, ran off the road and overturned. Cranfill and Williams were injured. Cranfill\u2019s injuries caused his death.\nJoe Gray Williams, older brother of James Wesley Williams, was also a passenger. Injuries, if any, received by him, are not involved in these actions. Hereafter, James Wesley Williams is referred to as \u201cWilliams,\u201d James Lloyd Cranfill is referred to an \u201cCranfill,\u201d and Joe Gray Williams is referred to as \u201cJoe Williams.\u201d\nThese actions, one for the wrongful death of Cranfill and the other for Williams\u2019 injuries, were consolidated, by consent, for trial. The complaints contained substantially the same allegations as to defendant\u2019s actionable negligence. Defendant, answering, denied he was negligent and pleaded the contributory negligence of Cranfill and Williams.\nThe only evidence was that offered by plaintiff. Relevant portions thereof will be set forth in the opinion.\nIn each case, the jury answered the issues of negligence and contributory negligence in favor of plaintiffs and awarded damages. Judgments, in accordance with the verdicts, were entered. Defendant, in each case, excepted and appealed.\nH. Smith Williams and B. Lewis Alexander for -plaintiffs, appellees.\nWalter Zachary and Womble, Carlyle, Sandridge & Bice for defendant, appellant." }, "file_name": "0137-01", "first_page_order": 175, "last_page_order": 183 }