{ "id": 8566776, "name": "KENNETH W. BREWER, Administrator of the Estate of FARRELL L. BREWER, Plaintiff v. WILLIAM P. HARRIS, Administrator of the Estate of GARY RUDISILL, Defendant", "name_abbreviation": "Brewer v. Harris", "decision_date": "1971-07-30", "docket_number": "No. 102", "first_page": "288", "last_page": "299", "citations": [ { "type": "official", "cite": "279 N.C. 288" } ], "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": "179 S.E. 2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "10 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554612 ], "opinion_index": -1, "case_paths": [ "/nc-app/10/0515-01" ] }, { "cite": "34 S.E. 634", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "125 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274323 ], "opinion_index": 0, "case_paths": [ "/nc/125/0474-01" ] }, { "cite": "156 S.E. 2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563590 ], "opinion_index": 0, "case_paths": [ "/nc/271/0285-01" ] }, { "cite": "93 S.E. 2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219557 ], "opinion_index": 0, "case_paths": [ "/nc/244/0334-01" ] }, { "cite": "92 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219545 ], "opinion_index": 0, "case_paths": [ "/nc/244/0023-01" ] }, { "cite": "159 S.E. 2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "273 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574366 ], "opinion_index": 0, "case_paths": [ "/nc/273/0044-01" ] }, { "cite": "120 S.E. 334", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "186 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654473 ], "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/186/0704-01" ] }, { "cite": "27 S.E. 991", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "121 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653487 ], "opinion_index": 0, "case_paths": [ "/nc/121/0519-01" ] }, { "cite": "62 S.E. 912", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "149 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269974 ], "opinion_index": 0, "case_paths": [ "/nc/149/0169-01" ] }, { "cite": "93 S.E. 967", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "174 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254497 ], "opinion_index": 0, "case_paths": [ "/nc/174/0483-01" ] }, { "cite": "69 S.E. 58", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273473 ], "opinion_index": 0, "case_paths": [ "/nc/153/0610-01" ] }, { "cite": "93 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "148 S.E. 36", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627884 ], "opinion_index": 0, "case_paths": [ "/nc/197/0189-01" ] }, { "cite": "128 F. 2d 378", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10699854 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/f2d/128/0378-01" ] }, { "cite": "355 U.S. 41", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6161830 ], "weight": 4, "pin_cites": [ { "page": "47-48" } ], "opinion_index": 0, "case_paths": [ "/us/355/0041-01" ] }, { "cite": "176 S.E. 2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] } ], "analysis": { "cardinality": 1062, "char_count": 23789, "ocr_confidence": 0.554, "pagerank": { "raw": 6.875497906909329e-07, "percentile": 0.9645624127120925 }, "sha256": "c1877179698e329a079f11467badb6fd5855102da10c311db40b5bb64468cb78", "simhash": "1:49bf91ed070d025b", "word_count": 4011 }, "last_updated": "2023-07-14T15:36:58.436463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KENNETH W. BREWER, Administrator of the Estate of FARRELL L. BREWER, Plaintiff v. WILLIAM P. HARRIS, Administrator of the Estate of GARY RUDISILL, Defendant" ], "opinions": [ { "text": "BRANCH, Justice.\nDefendant appellant contends that the Court of Appeals erred in holding that the complaint was sufficient to raise an issue as to whether the conduct of defendant\u2019s intestate was wilful and wanton.\nPlaintiff by his complaint, inter alia, alleged:\nVII. Said collision occurred in the following manner and not otherwise:\nGary Gene Rudisill was driving said 1968 Chevrolet Corvette automobile in a northerly direction along South Main Street. Before stopping at the intersection of South Main Street and Fairfield Road, where the electrical traffic signal was then displaying a red light for traffic on South Main Street, Gary Gene Rudisill had been driving at a lawful and reasonable rate of speed and in a normal, careful and prudent manner. When the traffic signal at the intersection of South Main Street and Fairfield Road turned green for traffic on South Main Street, Gary Gene Rudisill resumed traveling in a northerly direction along South Main Street but suddenly accelerated the speed of said automobile and began traveling at a highly dangerous and unsafe rate of speed and in an extremely careless and reckless manner. Despite the protests of the occupants of- said automobile, including the protests of Farrell L. Brewer, Gary Gene Rudisill, continued to drive at an extremely high and dangerous rate of speed and lost control of said automobile as it entered the curve at the intersection of Fraley Road and South Main Street. Said automobile went off the west side of the road, struck two utility poles and struck head-on a 1967 Pontiac automobile being operated by James Daniel Miller. Said 1968 Chevrolet Corvette automobile was totally demolished and its occupants, including Farrell L. Brewer, were thrown from the vehicle. Farrell L. Brewer thereby sustained severe and critical injuries from which he died at about two o\u2019clock a.m. on September 15, 1968.\nVIII. The injuries sustained by Farrell L. Brewer and his death were solely and proximately caused by the negligence of Gary Gene Rudisill. Specifically Gary Gene Rudi-sill was negligent in the following respects:\n(a) He drove said 1968 Chevrolet Corvette automobile upon a public highway carelessly and heedlessly, in willful and wanton disregard of the rights and safety of Farrell L. Brewer and others, without due caution and circumspection, and at a speed and in such a manner as to endanger the person and property of Farrell L. Brewer and others, thereby violating the provisions of G.S. 20-140.\n(b) He drove said 1968 Chevrolet Corvette automobile at a speed greater than was reasonable and prudent under conditions then existing, thereby violating the provisions of G.S. 20-141 (a).\n(c) He drove said 1968 Chevrolet Corvette automobile at a speed greatly in excess of the maximum posted speed limit of thirty-five (35) miles per hour then and there prevailing.\n(d) He failed to decrease the speed of said 1968 Chevrolet Corvette automobile where special hazard existed by reason of highway and traffic conditions so as to avoid said collision in accordance with his duty to exercise due care, thereby violating the provisions of G.S. 20-141 (c).\n(e) He failed to keep and maintain said 1968 Chevrolet Corvette automobile under careful and proper control in violation of his legal duty to exercise due care.\n(f) He failed to drive said 1968 Chevrolet Corvette automobile upon the right half of the roadway, thereby violating the provisions of 20-146(a).\n(g) While meeting a vehicle proceeding in the opposite direction he failed to pass said vehicle to the right and give to the other vehicle at least one-half of the main traveled portion of the roadway as nearly as possible, thereby violating the provisions of G.S. 20-148. (Emphasis added.)\nThe effective date of the Rules of Civil Procedure contained in Chapter 1A of the General Statutes was 1 Jauuary 1970, and the Rules apply to actions and proceedings pending on that date as well as to actions and proceedings commenced on and after that date. Session Laws of 1969, Ch. 803, \u00a7 10; Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161.\nThis case was tried on 18 May 1970 and is therefore governed by the \u201cNew Rules.\u201d G.S. 1A-1, Rule 8 provides:\n(a) Claims for relief. \u2014 A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, shall contain\n(1) A short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, ...\u201d\nIn Sutton v. Duke, supra, this Court considered the effect of this rule and, speaking through Sharp, J., stated:\n\u201c . . . [S]ince the federal and, presumably, the New York rules are the source of NCRCP we will look to the decisions' of those jurisdictions for enlightenment and guidance as we develop \u2018the philosophy of the new rules.\u2019\n\u201cThe attempts of the federal court to state the scope and philosophy of their rules was summarized by Mister Justice Black in Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S.Ct. 99, the case most frequently cited and quoted on the point we consider here. Speaking for a unanimous Court, he said: \u2018 . . . [T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is a \u201cshort and plain statement of the claim\u201d that will give the defendant fair notice of what the plaintiff\u2019s claim is and the grounds upon which it rests.\nThe illustrative forms appended to the Rules plainly demonstrate this. Such simplified \u201cnotice pleading\u201d is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.\u2019 Id. at 47-48. Thus, under the federal rules \u2018a case consists not in the pleadings, but in the evidence, for which the pleadings furnish the basis.\u2019 DeLoach v. Crowley, Inc., 128 F. 2d 378 (5th Cir., 1941).\n\u201cUnder the \u2018notice theory of pleading\u2019 a statement of claim is adequate if it gives sufficient notice of the claim asserted \u2018to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata, and to show the type of case brought\nWe find further aid in interpreting these Rules by reference to the illustrative forms approved by the legislature in G.S. 1A-1, Rule 84, where we find the following:\n\u201cThe following forms are sufficient under these rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate:\n(4) Complaint for Negligence. (Where plaintiff is unable to determine definitely whether one or the other of two persons is responsible or whether both are responsible and where his evidence may justify a finding of wilfulness or of recklessness or of negligence.)\n1. On _ 19_, at _, defendant X or defendant Y, or both defendants X and Y, wilfully or recklessly or negligently drove or caused to be driven a motor vehicle against plaintiff who was then crossing said street,\n2. Defendant X or defendant Y, or both defendants X and Y were negligent in that:\n(a) Either defendant or both defendants drove at an excessive speed.\n(b) Either defendant or both defendants drove through a red light.\n(c) Either defendant or both defendants failed to yield the right-of-way to plaintiff in a marked crosswalk.\n3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization [in the sum of one thousand dollars] (or) [in an amount not yet determined].\nWherefore, plaintiff demands judgment against X or against Y or against both in the sum of_dollars and costs.\u201d\nThis form approves a short statement of the basic occurrences and the use of the words \u201creckless\u201d and \u201cwilful\u201d to describe the character of a defendant\u2019s conduct as sufficient notice of the claim \u201cto enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata, and to show the type of case brought. ...\u201d\nCertainly the detailed factual allegations and the description of the character of defendant\u2019s intestate\u2019s alleged conduct in instant case meets the requirement of \u201cnotice theory of pleading.\u201d Our conclusion that this complaint gave defendant fair notice of the nature of plaintiff\u2019s claim and the grounds upon which it rested draws strength from the fact that defendant\u2019s answer alleges \u201cwilful and wanton\u201d conduct on the part of Brewer in pleading contributory negligence.\nWe hold that plaintiff\u2019s complaint was sufficient to raise the issue of defendant\u2019s intestate\u2019s wilful and wanton conduct.\nAppellant contends that plaintiff failed to allege wilful and wanton conduct within the provisions of N.C.G.S. 1A-1, Rule 9 (b) stating that conditions of mind may be generally averred. Since we hold that the complaint meets the requirements of G.S. 1A-1, Rule 84, Form 4, we find no merit in this contention.\nWe next consider appellant\u2019s contention that the evidence was not sufficient to require submission of an issue as to the wilful and wanton conduct of defendant\u2019s intestate.\nThe evidence pertinent to decision of this question may be summarized as follows:\nBrewer and Carroll had been acquainted for several years, including association in the military service in Vietnam. Carroll had been separated from the service, and Brewer was on a weekend leave from his military station at Fort Benning, Georgia. On the night of 15 September 1968 they met at the Guilford Dairy in High Point at about 9:30 o\u2019clock, and thereafter went for a ride in Carroll\u2019s automobile. During the evening both Carroll and Brewer had two drinks of Bourbon whiskey, and they together consumed about one-half pint. Brewer and Carroll returned to the Dairy around 11:00 o\u2019clock p.m., and there met Rudisill. Sometime later they left in Rudisill\u2019s Corvette, with Brewer driving, Rudisill sitting on the console between the two seats, and Carroll sitting in the passenger seat. Brewer drove the automobile in a southerly direction on South Main Street through High Point to a service station in Archdale, North Carolina. There they stopped and talked a few minutes. On their return trip Rudisill drove, Carroll sat in the passenger seat, and Brewer sat on the console.\nThe witness Carroll testified:\n\u201cWhen we left the service station we traveled back down South Main Street. Gary Rudisill drove the car from the point where we had stopped below Archdale all the way back to where the wreck had happened. Describing the manner in which Gary Rudisill was operating the automobile, I\u2019d say he was driving 35 and he got to about a 45 limit and he was running between 40 and 45. Up to the Fairfield Road intersection he was driving at all times within the speed limit and on his right side of the road. Until we arrived at the Fairfield Road intersection I did not notice anything abnormal about the way Gary Rudisill was driving. H\u00e9 was driving very safely then.\n\u201cWhen we arrived at the intersection of South Main Street and Fairfield Road there was a stop light at the intersection that was then red. Gary Rudisill pulled up to the light and stopped. We stayed stopped there, I guess 10 or 15 seconds and then the light changed to green. Describing the operation of the car after the light changed to green, we started rolling a little bit and then he just kicked it. By \u2018kicking it\u2019 I mean that he mashed the gas all the way to the floorboard. We just took off, just like that (demonstrating).\n\u201cI would say that the rate of speed we attained as we proceeded on toward High Point after leaving the Fairfield Road was well over a hundred. . . .\n\u201c . . . Farrell told him, said, \u2018Slow down/ said \u2018You are not going to make the curve/ and he told him that possibly two or three times before we got the curve.\n\u201c . . . The left hand side of the car struck the telephone pole. I do not know what happened after that. ...\u201d\nCarroll also testified that he saw Rudisill drinking from a plastic glass at the Guilford Dairy, and that Rudisill was \u201ctalking to different people . . . ,just like everybody else around there.\u201d\nC. W. Pike of the High Point Police Department, testifying for defendant, stated that he arrived at the scene of the accident about 1:35 a.m., and that he observed pressure marks beginning in the northbound lane of South Main Street. The marks continued 268 feet to a telephone pole, which apparently was severed by the impact of the Corvette automobile. The marks continued 124 feet to a second telephone pole, which was also damaged, and from there continued 70 feet to the rear of the Corvette. The Corvette\u2019s last impact was a head-on collision with the Pontiac which was traveling in a southerly direction in the southbound lane of Main Street.\nDefendant also presented evidence, over plaintiffs\u2019 objection, that Rudisill had a .31% alcohol content in his blood and that Brewer had an alcohol content of .11%. Dr. Thomas Terrell testified that if the jury should find that Rudisill had .31% alcohol content in his blood, he was \u201chighly intoxicated,\u201d and if the jury should find that Brewer had .11% alcohol content in his blood, that he was \u201cmildly intoxicated.\u201d\nThe term \u201cwilful and wanton conduct\u201d was defined by this Court in the case of Foster v. Hyman, 197 N.C. 189, 148 S.E. 36. There the Court stated:\n\u201cAn act is done wilfully when it is done purposely and deliberately in violation of law (S. v. Whitner, 93 N.C. 509; S. v. Lumber Co., 153 N.C. 610 [69 S.E. 58]), or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason. McKinney v. Patterson, supra. [174 N.C. 483, 93 S.E. 967]. \u2018The true conception of wilful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law.\u2019 Thompson on Negligence (2 ed.), sec. 20, quoted in Bailey v. R. R., 149 N.C. 169 [62 S.E. 912].\n\u201cAn act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. Everett v. Receivers, 121 N.C. 519, [27 S.E. 991] ; Bailey v. R. R., supra. A breach of duty may be wanton and wilful while the act is yet negligent; the idea of negligence is eliminated only when the injury or damage is intentional. Ballew v. R. R., 186 N.C. 704, 706 [120 S.E. 334, 335].\u201d\nAccord: Givens v. Sellars, 273 N.C. 44, 159 S.E. 2d 530; Hinson v. Dawson, 244 N.C. 23, 92 S.E. 2d 393; Blevins v. France, 244 N.C. 334, 93 S.E. 2d 549.\nOrdinarily, contributory negligence on the part of a plaintiff does not bar recovery when the wilful and wanton conduct of a defendant is a proximate cause of plaintiff\u2019s injuries. Pearce v. Barham, 271 N.C. 285, 156 S.E. 2d 290; Blevins v. France, supra; Brendle v. R. R., 125 N.C. 474, 34 S.E. 634.\nBoth plaintiff and defendant cite the case of Pearce v. Barham, supra. We think that this question is controlled by the decision in Pearce. In that case the Court, speaking through Bobbitt, J., now C.J., inter alia stated:\n\u201cThere was evidence which, when considered in the light most favorable to plaintiff, tends to show: On February 19, 1964, near midnight, Calvin W. Barham (Calvin), was driving his Ford car in a northeasterly direction along Rural Paved Road No. 2224. Plaintiff, seated to Calvin\u2019s right, and Dolly Barham (Dolly), seated to plaintiff\u2019s right, were passengers. As he approached Fowler\u2019s Crossroads, the intersection of No. 2224 with Rural Paved Road No. 2308, Calvin was driving in a drizzling rain, with slick tires, upgrade, at a speed of ninety miles an hour \u2018or better\u2019 moving back and forth across the road; and, although confronted by the stop sign at that intersection, failed to stop or slow down, crossed the intersection at such speed and lost control. As a result, his car left the road and overturned in a field some 288 feet from where it left the road, killing the driver and injuring the passengers. There was evidence sufficient to support a finding that Calvin\u2019s conduct was both wilful and wanton.\u201d\nPerhaps the facts in instant case make out an even stronger case of wilful and wanton conduct than is shown in Pearce, since here we have evidence of protest and warning by plaintiff\u2019s intestate concerning defendant\u2019s intestate. In any event, the evidence here presented was ample to allow the jury to find that his conduct was both wilful and wanton.\nThe trial court erred by not submitting the issue requested by plaintiff and the error is prejudicial, since the plaintiff\u2019s right to recover was barred upon a finding of contributory negligence.\nFinally, defendant argues that, based on the court\u2019s instructions, the jury found the plaintiff\u2019s intestate guilty of wilful and wanton contributory negligence.\nIt is true that the trial judge referred to defendant\u2019s allegations of Brewer\u2019s wilful and wanton conduct and to defendant\u2019s contention that Brewer displayed wilful and wanton disregard for his own safety. However, in his final mandate to the jury on the issue of contributory negligence the trial judge stated:\n\u201c . . . [A]nd that they at no time protested regarding the manner in which the car was being operated, which failure to exercise due care for their own safety concurred and cooperated with the negligence, if any, of the defendant; and I charge you that if you so find such to be the case, and if you further find that in such conduct they, or either of them, voluntarily placed themselves in such peril known to them, or either of them, or both of them, and voluntarily continued therein, and thereby failed to exercise ordinary care for their own safety, the same being that degree of care that a reasonably prudent person would exercise under the same or similar circumstances, in either of these cases, then it would be your duty to find on the Second Issue, \u2018Yes,\u2019 in favor of the defendant.\u201d\nFurther examination of the charge reveals that the trial judge undertook to define \u201cdue care\u201d but omitted any definition of \u201cwilful and wanton conduct\u201d; neither did he apply \u201cwilful and wanton conduct\u201d to the facts of the case so that the jury would have been able to determine what act or omission on the part of plaintiff\u2019s intestate could be characterized as wilful and wanton. Thus, consistent with his refusal to submit an issue as to Rudisill\u2019s wilful and wanton conduct, the trial judge based his charge on the second issue upon the theory of ordinary contributory negligence.\nWe do not agree with defendant\u2019s contention that, based on the court\u2019s instructions, the jury found plaintiff\u2019s intestate guilty of wilful and wanton contributory negligence.\nWe note, in passing, that this appeal does not require decision as to whether plaintiff could recover if both Brewer and Rudisill had been guilty of wilful and wanton conduct which was a proximate cause of Brewer\u2019s injury.\nThe Court of Appeals properly granted a new trial.\nAffirmed.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "John Haworth, Haworth, Riggs, Kuhn and Haworth for 'plaintiff appellee.", "Perry C. Henson and Daniel W. Donahue for defendant appellant." ], "corrections": "", "head_matter": "KENNETH W. BREWER, Administrator of the Estate of FARRELL L. BREWER, Plaintiff v. WILLIAM P. HARRIS, Administrator of the Estate of GARY RUDISILL, Defendant\nNo. 102\n(Filed 30 July 1971)\n1. Rules of Civil Procedure \u00a7 85\u2014 applicability of new rules\nThe new Rules of Civil Procedure apply to actions pending on 1 January 1970 as well as to actions and proceedings commenced on and after that date.\n2. Automobiles \u00a7 43; Negligence \u00a7 7\u2014 wilful and wanton negligence \u2014 sufficiency of pleadings\nIn this action for the wrongful death of a passenger in an automobile which failed to negotiate a curve, plaintiff\u2019s complaint was sufficient to raise the issue of wilful and wanton negligence on the part of the driver of the automobile. G.S. 1A-1, Rule 84, Form 4.\n3. Negligence \u00a7 7\u2014 wilful and wanton negligence\nOrdinarily, contributory negligence on the part of a plaintiff does not bar recovery when the wilful and wanton conduct of a defendant is a proximate cause of plaintiff\u2019s injuries.\n4. Automobiles \u00a7\u00a7 91, 94; Negligence \u00a7 7\u2014 wilful and wanton negligence \u2014\u25a0 sufficiency of evidence\nIn an action for the wrongful death of a passenger in an automobile which failed to negotiate a curve, plaintiff\u2019s evidence was sufficient to require submission of an issue as to the wilful and wanton conduct of the driver of the automobile where it tended to show that, despite warnings by plaintiff\u2019s intestate to slow down for the approaching curve, the driver failed to slow down and entered the curve at a speed over 100 mph, and that the driver had a blood alcohol content of .31%.\n5. Automobiles \u00a7 94; Negligence \u00a7 7\u2014 wilful and wanton contributory negligence \u2014 jury verdict\nThere is no merit in the contention by defendant in this wrongful death action that, based on the court\u2019s instructions, the jury found plaintiff\u2019s intestate guilty of wilful and wanton contributory negligence.\nAppeal by defendant pursuant to G.S. 7A-S0(2) from decision of the North Carolina Court of Appeals (10 N.C. App. 515, 179 S.E. 2d 160), holding there was error in the trial before Collier, J., at 18 May 1970 Session of Guilford Superior Court (High Point Division).\nThis is an appeal resulting from trial of a wrongful death action and an action to recover damages for personal injuries arising out of an automobile collision which occurred on 15 September 1968 in the city limits of High Point, North Carolina. The collision involved a 1967 Pontiac operated by James Miller, and a 1968 Corvette owned and operated by Gary Gene Rudisill (Rudisill). Farrell L. Brewer (Brewer) and Danny Carroll (Carroll) were passengers in the Corvette automobile at the time of the collision. Both Brewer and Rudisill died as a result of injuries sustained in the accident, and Carroll suffered personal injuries. Brewer\u2019s administrator instituted action for wrongful death, and Carroll instituted action to recover damages for personal injuries against Rudisill\u2019s administrator. The actions were consolidated for trial, and at the close of the evidence plaintiffs, pursuant to G.S. 1A-1, Rule 49(c), demanded that the following issue be submitted:\nIssue Number Three: \u201cIf so, was the death of Farrell L. Brewer caused by wilful or wanton conduct on the part of Gary Gene Rudisill, as alleged in the Complaint?\u201d\nThe trial judge denied plaintiffs\u2019 tender of issue, and issues were submitted to and answered by the jury as follows:\n1. Was Farrell L. Brewer killed by the negligence of Gary Gene Rudisill, as alleged in the Complaint?\nAnswer: Yes.\n2. If so, did Farrell L. Brewer contribute by his own negligence to his death, as alleged in the Answer?\nAnswer: Yes.\n3. What amount, if any, is the plaintiff entitled to recover for the wrongful death of Farrell L. Brewer?\nAnswer: -.\nPrior to the submission of the issues it was stipulated by counsel that if the jury should find from the evidence and by its greater weight that Gary Gene Rudisill was the driver of the car on this occasion, the jury might answer the first issue \u201cYes.\u201d\nPlaintiff Brewer appealed from the judgment entered in accordance with the jury verdict, and plaintiff Carroll abandoned and failed to perfect his appeal. It was stipulated between plaintiff Brewer and defendant that there should be omitted from the agreed record and case on appeal all reference to the case in which Danny Carroll was plaintiff.\nJohn Haworth, Haworth, Riggs, Kuhn and Haworth for 'plaintiff appellee.\nPerry C. Henson and Daniel W. Donahue for defendant appellant." }, "file_name": "0288-01", "first_page_order": 316, "last_page_order": 327 }