{ "id": 8565899, "name": "W. G. H. WEATHERMAN, Administrator of the Estate of ARNOLD CLEVELAND WEATHERMAN, v. ERNESTINE STEELMAN WEATHERMAN, Administratrix of the Estate of PAUL G. WEATHERMAN", "name_abbreviation": "Weatherman v. Weatherman", "decision_date": "1967-04-19", "docket_number": "", "first_page": "130", "last_page": "134", "citations": [ { "type": "official", "cite": "270 N.C. 130" } ], "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": "39 S.W. (2d) 813", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "134 N.E. 340", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "163 S.E. 290", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "234 N.W. 742", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "138 So. 871", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 10075762, 5426756 ], "opinion_index": 0, "case_paths": [ "/so/138/0871-01", "/la/173/0883-01" ] }, { "cite": "246 N.W. 328", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "244 N.W. 611", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "152 S.E. 201", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "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" ] } ], "analysis": { "cardinality": 628, "char_count": 10518, "ocr_confidence": 0.553, "pagerank": { "raw": 9.134288990235536e-08, "percentile": 0.5074459939556322 }, "sha256": "28b5fc341633b47a622e89c472f1debcf7a5322997fac297bf2fa7d8ac52cfa4", "simhash": "1:10de60f8c627860e", "word_count": 1813 }, "last_updated": "2023-07-14T21:31:56.885447+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. G. H. WEATHERMAN, Administrator of the Estate of ARNOLD CLEVELAND WEATHERMAN, v. ERNESTINE STEELMAN WEATHERMAN, Administratrix of the Estate of PAUL G. WEATHERMAN." ], "opinions": [ { "text": "Pless, J.\nThere was sufficient competent evidence to sustain the jury\u2019s finding of contributory negligence as to the plaintiff\u2019s intestate.\nSummarized, the evidence tended to show that Paul had been with Arnold for several hours prior to the wreck, during which time Paul was drinking, fussing, and attempting to start a fight. He had drawn a pistol on a crowd of boys, and in .going from one drive-in to another, he was driving from 60 to 65 miles per hour in a 45-mile zone. Shortly before the fatal accident, Frank Edwards had been riding with Paul, and he testified that Paul was running from 70 to 90 miles an hour as he was making a right turn, that the car slid sideways and skidded into another turn. Edwards then asked Paul to take him back to Garner\u2019s Esso Station, that he didn\u2019t like the way Paul was driving. At the gas station Edwards got out of the car, but Arnold remained in it.\nPaul\u2019s car had four forward speeds, a four-barrel carburetor, 426 cubic inch engine with a tachometer. Paul told the witness Bobbitt in Arnold\u2019s presence that it had a' cam and lifters to make it run faster, and that it would run 120 to 130 miles per hour at the Strat-ford Ramp. He also told Bobbitt that he would like to race him some time.\nLater, at the Triangle Drive-In, Paul jumped out of his car, waved a pistol in the air, and asked the boys there if they were looking for trouble, that he didn\u2019t care whether he lived or died. Arnold told B. S. Weinstein that Paul was drinking, and Weinstein testified that Paul didn\u2019t walk or talk normal. The three boys got' back in the car, drove off, and'the accident occurred just a mile from this place and two or three minutes later.\nThe following statement from Bogen v. Bogen, 220 N.C. 648, 18 S.E. 2d 162, is pertinent:\n. . one who voluntarily places himself in a position of peril known to him fails to exercise ordinary care for his own safety and thereby commits an act of continuing negligence which will bar any right of recovery for injuries resulting from such peril.\n\u201cA guest, entering an automobile, assumes the dangers incident to the known incompetency, inexperience and driving habits of the driver. 4 Blashfield, 331, and cases cited in notes. It is the general rule that a guest or passenger in an automobile-takes the host with his defects of skill and judgment and his known habits and eccentricities in driving. 4 Blashfield, 197.\n\u201c \u2018When a guest enters an automobile with the knowledge that the driver is incompetent or inexperienced ... he takes the chances of an accident, and, in case an accident occurs arising from such known incompetency, inexperience, or recklessness, he cannot recover against the driver; for in such case he assumes the risk of the accident by inciting the driver\u2019s predisposition to operate the vehicle in an irresponsible manner.\u2019 4 Blashfield, 333, and cases cited. So, if a guest, with knowledge of the defective condition of the car and appreciation of the hazards involved, voluntarily assents to ride therein, he will be precluded from recovery for injuries in an accident resulting from the defects of which he has then been cognizant. 4 Blashfield, 336; Cline v. Prunty, 152 S.E. 201 (W. Va.); Pawhowski v. Eskafski, 244 N.W. 611 (Wis.); Knipfer v. Shaw, 246 N.W. 328 (Wis.).\n\u201cThe guest cannot acquiesce in negligent driving and retain a right to recover against the driver for resulting injuries therefrom. 4 Blashfield, 194-195; Lorance v. Smith, 138 So. 871 (La.); Royer v. Saecker, 234 N.W. 742 (Wis.). The basis for charging the passenger with negligence in such case is simply that of his own personal negligence in thus relying entirely and blindly upon the driver\u2019s care. Russel v. Bayne, 163 S.E. 290 (Ga.); Lambert v. Railway Co., 134 N.E. 340 (Mass.); Heyde v. Patten, 39 S.W. (2d) 813.\u201d\nThe Bogen case was decided in 1941, and since that time there-have been many references to it and some revisions and qualifications; however, the sections quoted above have not been altered in any manner that would affect their application here.\nUnder these authorities we hold that the evidence stated above is sufficient to go to the jury upon the question of contributory negligence. However, we are of the opinion that the plaintiff\u2019s case was substantially damaged by the admission of the following incompetent evidence.\nUpon the theory that Paul and Arnold were brothers who were very close to each other and \u201cran around together\u201d almost every evening, the Court admitted testimony from their aunt, Mrs. Shirley Ann Hise, upon the contention of the defendant that if the aunt knew about the record of Paul that Arnold would also. She was permitted to testify over plaintiff\u2019s objection as follows:\n\u201cQ. You knew that in March of 1964 he was convicted of reckless driving, didn\u2019t you?\nMr. Frye: Well, I object, if your Honor please.\nThe Court: Overruled. Exoeption No. 116.\nA. Yes, I did.\n\u201cQ. And you knew that in March of 1964 he was convicted of driving after his license were revoked, didn\u2019t you?\nMr. Frye: I object. Exceptioh No. 117.\nA. No. No.\n\u201cQ. And you knew that he had been convicted of driving an automobile intoxicated, didn\u2019t you?\nMr. Frye: I object.\nThe Court: Overruled. ExoeptioN No. 118.\nA. I don\u2019t remember. I remember that he was charged with reckless driving. I don\u2019t remember the other. I would be afraid to say.\n\u201cQ. All right. But you do know that in November 1962 he was convicted of driving intoxicated and his licenses were taken, don\u2019t you?\nMr. Frye: Objection. She said she didn\u2019t have any other \u25a0 knowledge other than reckless driving.\nThe Court: Overruled. ' ExoeptioN No. 119.\nA. I\u2019d be afraid to say. \u2019\n\u201cQ. Well, you had heard about it, hadn\u2019t you?\nA. Hearing and knowing is two \u25a0 different things.\nThe Court: Just answer his question.\nQ. You had heard about this?\nA. I suppose so. He was my nephew, I knew his license were taken away from him.\n\u201cQ. You know that he got caught driving after his license were revoked?\nMr. Frye: I object.\nThe Court: Overruled.. Exoeption No. 120.\nA. (No answer)\n\u201cI had not heard about that. I know that he was caught with reckless driving. That I know for sure. The other I will not say because I am not sure.\n\u201cQ. And at the time he was caught for reckless driving, he was traveling at a high rate of speed, wasn\u2019t he?\nMr. Frye: I object, if your Honor please.\nThe Court: Overruled. ExoeptioN No. 121.\nA. I suppose so.\n\u201cQ. As a matter of fact, the speed was 90 miles an' hour, wasn\u2019t it?\nMr. Frye: Now, I object.\nA. I do not know.\nThe Court: Overruled. ExceptioN No. 122.\u201d\nThis was prejudicial upon several theories. The questions themselves were incompetent, and even though objections to them had been sustained, they put before the jury information, or claims, about Paul\u2019s record that could not have been proven in that manner. Also, the questions and the answers violated the hearsay evidence rule in that the questions were not so framed as to show actual knowledge by Mrs. Hise of the facts sought to be elicited. Further, the fact that Mrs. Hise knew or had heard of the incidents would not necessarily imply that Arnold also had that information.\nThe questions and answers are incompetent and highly prejudicial. The1 plaintiff\u2019s exceptions are well taken, and he is entitled to a\nNew trial.", "type": "majority", "author": "Pless, J." } ], "attorneys": [ "Roberts, Frye \u25a0& Booth, by Leslie G. Frye and Parks Roberts, Attorneys for the plaintiff appellant.", "Womble, Carlyle, Sandridge & Rice by Grady Barnhill, Jr.', and David A. Irvin; Allan R. Gitter, Attorneys for defendant appellees." ], "corrections": "", "head_matter": "W. G. H. WEATHERMAN, Administrator of the Estate of ARNOLD CLEVELAND WEATHERMAN, v. ERNESTINE STEELMAN WEATHERMAN, Administratrix of the Estate of PAUL G. WEATHERMAN.\n(Filed 19 April, 1967.)\n1. Automobiles \u00a7 49\u2014\nEvidence that intestate continued to ride with an intoxicated and reckless driver for a number of hours although intestate had opportunity to alight from the car with safety at a filling station after the recklessness of the driver had become abundantly apparent, held sufficient to raise the issue of intestate\u2019s contributory negligence for the determination of the jury in plaintiff\u2019s action to recover for intestate\u2019s death in an accident resulting from the driver\u2019s recklessness.\n2. Evidence \u00a7 26\u2014\nIn an action based on the recklessness of the driver of an automobile, it is improper for counsel to ask a witness whether the witness had knowledge of previous convictions of the driver for violations of the motor vehicle statutes, since the questions put before the jury information or claims in violation of the best evidence rule.\n3. Evidence \u00a7 28\u2014\nAnswers of a witness to questions as to whether the witness had heard about prior convictions of a driver for violations of the motor vehicle statutes are incompetent as hearsay.\n4. Evidence \u00a7 15\u2014\nIntestate was killed while riding as a passenger in an automobile driven by his brother. Held: Testimony of intestate\u2019s aunt tending to show her knowledge of the driver\u2019s reputation for recklessness is incompetent to show that intestate knew of such reputation when he voluntarily rode as a passenger in the car driven by his brother.\nAppeal by plaintiff from Gambill, J., at November 7, 1966 Civil Session of the Superior Court of FoRSyth County.\nThe plaintiff\u2019s intestate, Arnold Weatherman, age 19, was riding with his brother, Paul, age 21, in Paul\u2019s 1964 Plymouth on May 19, 1965 about 11:25 p.m. Robert Thomas was also in the car \u2014 Paul was driving.\nArnold and Paul had been riding around together most of the evening and had stopped at several places.\nHerman Foster testified that he was driving a 1964 Ford west on 1-40 when Paul\u2019s car struck him from behind. It was struck so hard that the front seat was torn out, and it went some 500 feet from the point of impact before stopping. Robert Lee Anderson testified that Paul\u2019s car started to pass him at a speed of 80 to 90 miles per hour, that he believed a tire blew out on Paul\u2019s car as it was passing him, that it then ran into the rear of the Foster car, careened off, crossed the median and struck a Mack truck which was going east on the other section of 1-40.\nAll three of the boys in the Plymouth were killed instantly.\nArnold\u2019s administrator brought suit against Paul\u2019s administrator to recover for the death of the former. At the trial.the defendant admitted Paul\u2019s negligence and stipulated that the jury should answer the first issue of negligence \u201cYes.\u201d The jury answered the 'issue of contributory negligence in favor of the defendant. Upon judgment signed, the plaintiff appealed.\nRoberts, Frye \u25a0& Booth, by Leslie G. Frye and Parks Roberts, Attorneys for the plaintiff appellant.\nWomble, Carlyle, Sandridge & Rice by Grady Barnhill, Jr.', and David A. Irvin; Allan R. Gitter, Attorneys for defendant appellees." }, "file_name": "0130-01", "first_page_order": 170, "last_page_order": 174 }