{ "id": 8574476, "name": "SOUTHERN NATIONAL BANK OF NORTH CAROLINA, Administrator of the Estate of LACY OXENDINE, Deceased v. HENRY LINDSEY", "name_abbreviation": "Southern National Bank v. Lindsey", "decision_date": "1965-06-02", "docket_number": "", "first_page": "585", "last_page": "588", "citations": [ { "type": "official", "cite": "264 N.C. 585" } ], "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": "138 S.E. 2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569567 ], "opinion_index": 0, "case_paths": [ "/nc/262/0544-01" ] }, { "cite": "105 S.E. 2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606011 ], "opinion_index": 0, "case_paths": [ "/nc/249/0001-01" ] }, { "cite": "136 S.E. 2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575273 ], "opinion_index": 0, "case_paths": [ "/nc/261/0687-01" ] }, { "cite": "136 S.E. 2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575261 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0684-01" ] }, { "cite": "102 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628407 ], "opinion_index": 0, "case_paths": [ "/nc/247/0718-01" ] }, { "cite": "126 S.E. 2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568417 ], "opinion_index": 0, "case_paths": [ "/nc/257/0447-01" ] }, { "cite": "115 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626003 ], "opinion_index": 0, "case_paths": [ "/nc/252/0787-01" ] }, { "cite": "134 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573167 ], "opinion_index": 0, "case_paths": [ "/nc/261/0332-01" ] } ], "analysis": { "cardinality": 516, "char_count": 9661, "ocr_confidence": 0.58, "pagerank": { "raw": 2.4399562541320345e-07, "percentile": 0.8029545351871866 }, "sha256": "b5b0360de6a55c0c195fd309e9b7155635c89cbb4824bc0351391138ec35f928", "simhash": "1:9b27c5b301eda45a", "word_count": 1679 }, "last_updated": "2023-07-14T15:18:06.877661+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SOUTHERN NATIONAL BANK OF NORTH CAROLINA, Administrator of the Estate of LACY OXENDINE, Deceased v. HENRY LINDSEY." ], "opinions": [ { "text": "Per Curiam.\nPlaintiff\u2019s evidence shows these facts: About 12:15 p.m. on Sunday, 23 February 1964, David 0. Pearce, a State Highway patrolman, arrived at the scene of a motor vehicle accident on Rural Paved Road #1150 about five miles north of the town of Rowland. \u201cRural Paved Road 1150 runs generally north and south, or northwest to southeast, it is crooked, runs all kinds of ways.\u201d Fie saw there a 1960 GMC log and pulpwood truck, owned by defendant, headed south, upright on its wheels, on the west side of the road with its left wheels in a drainage ditch of the highway and its right wheels in a field beyond the drainage ditch. There was no damage to the truck. The door on the driver\u2019s side was open; the door on the right was closed. Defendant was leaning against his truck, his \u201ctongue was thick,\u201d his eyes were bloodshot, he could not walk without aid, and he was drunk. The warm body of Lacy Oxendine, plaintiff\u2019s intestate, a 45-year-old man, was lying to the left of the truck and about 75 feet behind it. Tire tracks went back up the ditch 484 feet from the back wheels of the truck to where it ran off the hard-surfaced part of the road. The ditch was about 18 inches deep. Pearce testified: \u201cThe ditch was kind of V-shape ditch and the wheels would bounce from side to side; for a distance dragged on one side and for a distance on the other, bouncing from side to side.\u201d The truck ran off the road on a slight curve. He asked defendant who was driving the truck. Defendant pointed to Lacy Oxendine\u2019s body, and said, \u201cHe was.\u201d He talked to defendant in jail three or four hours later. At that time defendant had sobered up \u201cpretty well.\u201d There defendant told him he could not tell a lie, he was driving the truck at the time of the accident, that Lacy Oxendine was in the truck with him, that they had been together all night and all day and had been drinking liquor together, and he did not know how the accident occurred.\nJ. A. Thompson, a deputy sheriff of Robeson County, arrived at the scene a few minutes before Pearce arrived. Defendant was there, and he was \u201cobviously drunk.\u201d He assisted him to walk to his car, and carried him to jail in Rowland. Before reaching Rowland five miles from the scene, defendant\u2019s head dropped over on the seat of the car, and he went to sleep.\nThe parties stipulated that Lacy Oxendine died as a result of the injuries he received in the accident and that the maximum speed limit on Rural Paved Road #1150 was 45 miles per hour at the time and place complained of.\nPlaintiff alleges in his complaint that defendant was guilty of negligence in the operation of his truck, which proximately caused its intestate\u2019s death, in the following respects: (1) He operated his truck in a reckless manner in violation of G.S. 20-140; (2) he operated his truck at a speed greater than was reasonable and prudent under the attendant circumstances and without keeping a proper lookout; (3) he operated his automobile at a speed in excess of a posted speed limit of 45 miles an hour; and (4) he operated his truck in such a manner and at such a speed as to be incapable of keeping it on the paved part of the road.\nDefendant in his answer denies that he was driving the truck at the time of the accident, and avers that Lacy Oxendine was driving it at such time. And by way of a further answer and defense, he alleges that if he was driving the truck at the time of the accident, which he denies, he was drunk to such an extent that his ability to operate a motor vehicle was materially impaired, that Lacy Oxendine knew his drunken condition when he voluntarily got into the truck as a passenger and rode with him without protest, that such conduct on the part of Lacy Oxendine constituted negligence which proximately contributed to his injuries and death, and bars any recovery by his administrator.\nPlaintiff has no evidence as to the speed of the truck at the time of the accident, or just before it. Its evidence shows the truck, after bouncing down the drainage ditch 484 feet, stopped upright on its wheels, and undamaged. All of plaintiff\u2019s evidence shows that defendant was operating his truck on the public highway in a drunken condition, when his mental and physical faculties were materially impaired. A person drunk by the use of intoxicating liquor is necessarily under the influence of intoxicating liquor within the intent and meaning of G.S. 20-138. S. v. Painter, 261 N.C. 332, 134 S.E. 2d 638. It is negligence per se for a person to operate an automobile while under the influence of intoxicating liquor upon a public highway of the State. G.S. 20-138; Watters v. Parrish, 252 N.C. 787, 115 S.E. 2d 1. All of plaintiff\u2019s evidence compels the necessary inference that his drunken condition was the cause of his perilous operation of his truck in driving it off the road on a slight curve into a drainage ditch, and then bouncing down the ditch 484 feet, which resulted in Lacy Oxendine falling out of the truck and receiving injuries proximately resulting in his death. That defendant\u2019s such perilous operation of his truck in a drunken condition constituted a driving of it upon the public highway without due caution and circumspection and in a manner so as to endanger persons or property, and was reckless driving within the intent and meaning of G.S. 20-140 (b). The language of subsections (a) and (b) of G.S. 20-140 \u201cconstitutes culpable negligence.\u201d Dunlap v. Lee, 257 N.C. 447, 126 S.E. 2d 62. A violation of either of the two subsections of G.S. 20-140 is negligence per se. Stegall v. Sledge, 247 N.C. 718, 102 S.E. 2d 115. Plaintiff\u2019s evidence manifestly shows that defendant was guilty of negligence per se in operating his truck in a reckless manner in violation of G.S. 20-140 (b), which was a proximate cause of plaintiff\u2019s intestate\u2019s death, as alleged in the complaint. Plaintiff\u2019s complaint was verified on 2 September 1964. It seems clear that plaintiff did not allege that defendant was negligent in operating his truck while drunk or under the influence of intoxicating liquor by reason of the decision in Davis v. Rigsby, 261 N.C. 684, 136 S.E. 2d 33 (29 April 1964).\nPlaintiff\u2019s evidence is that his intestate and defendant had been together all night and all day, and had been drinking liquor together. There is no evidence to the effect that its intestate was too drunk to know what was going on. In our opinion, and we so hold, plaintiff\u2019s own evidence, considered in the light most favorable to it, leads to the un-escapable conclusion that its intestate knew that defendant was drunk from drinking intoxicating liquor to a degree that he was incapable of safely operating his truck on a public highway at the time he voluntarily placed himself in a position of extreme danger known to him by entering defendant\u2019s truck and voluntarily riding with defendant who was driving it on a public highway, and that plaintiff\u2019s intestate, by voluntarily continuing to ride with defendant in his truck under such circumstances and conditions as would have impelled an ordinarily prudent man in the exercise of ordinary care for his own safety to stay out of the truck, which was being driven by a drunken driver, committed an act of continuing negligence which proximately contributed to his injuries and death as a matter of law, and which bars any recovery by his administrator for his death. This is in line with our decisions in Davis v. Rigsby, supra; Rice v. Rigsby, 261 N.C. 687, 136 S.E. 2d 35; Tew v. Runnels, 249 N.C. 1, 105 S.E. 2d 108.\nRandall v. Rogers, 262 N.C. 544, 138 S.E. 2d 248, relied on by plaintiff, is factually distinguishable, in that, inter alia, plaintiff got in defendant\u2019s automobile parked at the Moose Lodge, went to sleep, and the next thing he remembered was waking up next day in a hospital hurting all over. He did not know of his own knowledge who drove the car off, or who was driving it at the time of the accident.\nThe judgment of compulsory nonsuit is\nAffirmed.", "type": "majority", "author": "Per Curiam." } ], "attorneys": [ "Joseph C. Ward, Jr., for plaintiff appellant.", "Anderson, Nimocks & Broadjoot by Henry L. Anderson for defendant appellee." ], "corrections": "", "head_matter": "SOUTHERN NATIONAL BANK OF NORTH CAROLINA, Administrator of the Estate of LACY OXENDINE, Deceased v. HENRY LINDSEY.\n(Filed 2 June, 1965.)\n1. Automobiles \u00a7 41a\u2014\nEvidence tending to show that defendant drove off the highway at a slight curve, bounced down a drainage ditch some 484 feet before bringing the truck to a stop in an undamaged and upright position, that defendant\u2019s passenger was thrown from the truck to his fatal injury and that shortly after the accident defendant was too intoxicated to walk unaided, held sufficient to sustain plaintiff\u2019s allegations that defendant was guilty of reckless driving, O.S. 20-140, constituting negligence per se.\n2. Automobiles \u00a7 49\u2014\nPlaintiff\u2019s own evidence, considered in the light most favorable to plaintiff, compelled the consideration that plaintiff\u2019s intestate and defendant had been drinking together for a considerable time, and that intestate voluntarily rode with defendant and was thrown from the vehicle to his fatal injury as the result of the culpably negligent operation of the vehicle. There was no evidence that intestate was too drunk to know what was going on. Held: The evidence discloses contributory negligence as a matter of law on the part of intestate in voluntarily riding and in continuing to ride with an intoxicated driver.\nAppeal by plaintiff from Mallard, J., January 1965 Civil Session of ROBESON.\nAction ex delicto to recover damages for an alleged wrongful death. G.S. 28-173, -174.\nFrom a judgment of compulsory nonsuit entered at the close of plaintiff\u2019s evidence, it appeals.\nJoseph C. Ward, Jr., for plaintiff appellant.\nAnderson, Nimocks & Broadjoot by Henry L. Anderson for defendant appellee." }, "file_name": "0585-01", "first_page_order": 621, "last_page_order": 624 }