CLARENCE E. PARKER, ADMINISTRATOR OF THE ESTATE OF BONNIE BEULAH IRENE PATRICK, DECEASED, v. R. K. WILSON, EXECUTOR OF THE ESTATE OF ROBERT DONALD WILSON, DECEASED
In the Supreme Court of North Carolina
FALL TERM, 1957. (Filed 30 October, 1957)
247 N.C. 47
2. Same: Constitutional Law § 10—
Where the owner of an automobile is an occupant therein at the time of an accident, whether such owner should be presumed to have been the driver of the car at the crucial time is a matter for the General Assembly and not the courts.
3. Automobiles § 41p—
Where plaintiff must rely on the physical facts and other evidence of a circumstantial nature to establish which of the two occupants of a car was the driver thereof at the time of the fatal accident, plaintiff must establish attendant facts and circumstances which reasonably warrant his asserted inference, and such inference cannot rest on conjecture or surmise.
4. Trial § 23a—
To carry his case to the jury plaintiff must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference.
5. Automobiles § 41p—Physical facts held insufficient to go to jury on question of whether defendant‘s testate was driving car.
The evidence tended to show that plaintiff‘s intestate and defendant‘s testаte were riding in testate‘s car at the time it crashed violently into a tree, resulting in the death of both. After the accident, testate‘s body was found on the right with his head partially through the windshield, and the body of the plaintiff‘s intestate was found on the left, with her head lying on the steering column and switch key, which was just a few inches to the right of the steering column, and with her left arm up over the steering wheеl. Held: The evidence, together with other evidence in the case in regard to the position of the bodies and damage to the car, is insufficient to go to the jury upon plaintiff‘s averment that defendant‘s testate was driving the car at the time of the fatal accident.
HIGGINS, J., dissenting.
APPEAL by plaintiff from Crissman, J., January Term 1957 of FORSYTH.
From a judgment of nonsuit entered at the close of plaintiff‘s evidence, plaintiff appeals.
Spry, White & Hamrick for plaintiff, appellant.
Deal, Hutchins & Minor for defendant, appellee.
PARKER, J. For the sake of brevity plaintiff‘s intestate will be called Bonnie Patrick, and Robert Donald Wilson will be called Donald Wilson.
Donald Wilson owned a 1952 Oldsmobile automobile. He and Bonnie Patrick had been dating regularly. Between 9:00 and 10:00 p.m. on 23 December 1954 W. C. Campbell saw them leave his home in Donald Wilson‘s automobile. He did not testify who drove the automobile away.
Just after midnight on the morning of 24 December 1954, about 12:15 a.m., H. W. Holton was at Sheet‘s Barbecue Place adjacent to U. S. Highway 158. Just beyond this barbecue place there is a curve in the road. He saw an automobile approaching the curve travelling on the highway at a speed of approximately 65 or 70 miles an hour. Just as the automobile rounded the curve it cut across the road into the woods. He heard a crash, and went to the automobile. He found the automobile against a tree, and two people inside it, a man and a woman. The woman was Bonnie Patrick and the man was Donald Wilson. They were in the front seat, and the back seat was thrown up against the windshield on top of them. The biggest portion of the upper part of the woman‘s face on the right side was torn off, and her head was lying on the switch key and on the steering column, right between them. The switch key on the automobile was just a few inches to the right of the steering column, low on the dash. The man was on the right side with his head partially out of the windshield. He took the back seat off of them, and the man slid down until his head was lying on the dash, and he stayed there until he was moved to an ambulance. After he was moved, Holton saw a dent just above the glove compartment. On cross-examination Holton testified as follows: He was the first one at the scene. “When I saw them, the girl‘s left arm was up over the steering wheel, hanging onto it, and she was down sort of with her head against the rod of the steering wheel, and her left hand was over the steering wheel.” He noticed a pool of blood directly under the switch key where her head was resting. He opened the left dоor of the
About 12:30 a.m. R. L. Ellis was driving on U. S. Highway 158. When he arrived at Sheet‘s Barbecue Place, he stopped and went to the wreck. At the wreck, he saw a woman and a man in an Oldsmobile automobile. The woman was about the center of the car, and someone was holding her head up. The man was on the extreme right of the car with his head lying on the dash. As best he could tell, the man was not breathing, the woman was breathing hard, and he thought she was unconscious. “The right of the windshield was busted out, I believe.” The steering wheel of the car was on the left side. The woman was bleeding pretty bad. When the ambulance came to get the people, he pulled the seat back from the right-hand side of the car to get the man and woman out of the car. R. L. Ellis was recalled for cross-examination and testified as follows: “In my direct testimony I testified that I was present when the girl and boy were taken out of the car. At that time I testified that they were taken out on the right side of the car.”
Tony Barney testified that he arrived at the scene of the wreck between 12:15 and 12:30 a.m. When he arrived, between three and six people werе there. A man and a woman were in the car. The man was lying all the way against the right corner of the windshield with his head on the dash. The woman was over near the steering wheel, with her head lying on top of the steering wheel. He testified: “Laying up on top of the steering wheel. The bottom was bent down, and she was laying in the top of it. I don‘t know where her feet were exactly but they were sоmewhere in the floorboard. She was sitting on the seat near the steering wheel. She wasn‘t under the steering wheel.” The right-hand side of the windshield was broken out in the bottom.
Plaintiff saw this car about 5:00 a.m. after it had been moved. He saw some brown hair and blood on the dash. Bonnie Patrick had brown hair, and Donald Wilson black. Bonnie Patrick never regained consciousness.
Bonnie Patrick‘s mothеr saw the wrecked Oldsmobile automobile. She testified that she saw a terrible dent place in the dashboard, and some of Bonnie Patrick‘s hair on the right-hand side of the dashboard.
During the early morning of 24 December 1954 the coroner of the county, Dr. V. M. Long, examinеd the dead body of Donald Wilson. His examination showed that Donald Wilson had a broken neck, a crushed chest, a broken right femur and a dislocation of the left hip joint, and in his opinion these injuries caused Donald Wilson‘s death.
State Highway Patrolman C. N. Jones examined the Oldsmobile automobile about 1:00 a.m. on 24 December 1954. The front end was completely demolished. The tree mаde a half-moon of the front bumper, and went back in the motor and in between the right front wheel. The motor was pushed back some. The back seat was pulled loose, and brought forward, and the front seat was brought forward almost as far as it could possibly go. The dash on the right side was considerably bent in. The right half of the windshield was gone, and the lower half of the steering wheel was bеnt downward. In this car the glove compartment was on the extreme right-hand side of the dash. The dent in the dash was from the center to the right side. There was a portion of fine glass and blood and some hair in the dent, but the Patrolman did not know whose hair it was. When the Patrolman reached the wreck no one was in the car.
Plaintiff alleges in his complaint that Donald Wilson was driving his automobilе at the time it crashed into the tree, causing the death of Bonnie Patrick and himself. The defendant denies this in his answer, and alleges, upon information and belief, that at such time Bonnie Patrick was driving the automobile.
Plaintiff‘s counsel states in his brief that he is relying on the rule “that an owner present in his automobile at the time of a collision is presumed to be in control of his automobilе by himself or through some other person, and, if there be no direct proof as to the driver of the automobile, the owner will be presumed to have been driving.” The brief immediately thereafter states, “lamentably, this Court has not heretofore adopted the foregoing rule, and no case has been found wherein this Court has considered the rule.”
Plaintiff in his brief quotes from the dissenting opinion in Welty‘s Estate v. Wolfe‘s Estate, 345 Mich. 408, 76 N.W. 2d 52, as follows: “The car in which both men diеd was a Pontiac. It belonged to defendant‘s decedent Wolfe. That fact gives rise to a rebuttable presumption that he was driving at the time.” The sole authority cited to support such statement is the Pennsylvania case of Rodney v. Staman.
Plaintiff in his brief quotes from Drahmann‘s Adm. v. Brink‘s Adm., (Kentucky Court of Appeals), 290 S.W. 2d 449, as follows: “Other jurisdictions have held that a rebuttable presumption or inference arises that the defendant was driving upon proof of the defendant‘s ownership of the automobile or upon proof that he was driving shortly prior to the accident.” The only authority cited is the Pennsylvania case of Rodney v. Staman.
There is an annotation to Rodney v. Staman in 32 A.L.R. 2d 988, et seq., entitled “Proof, in absence of direct testimony by survivors or eyewitnesses, of who, among occupants of motor vehicle, was driving it at time of accident.” This annotation states this in effect that the principlе of a rebuttable presumption set forth in the Pennsylvania case of Rodney v. Staman has been applied or recognized in Iowa, Michigan, Ohio and South Dakota. Then the annotation sets forth cases which hold that one who was shown to be driving an automobile shortly prior to an accident is presumed to have continued as driver, a principle that needs no consideratiоn in the instant case, because there is no evidence that Donald Wilson was driving his car shortly prior to the accident.
“Considerable legal controversy has developed over the extent to which presumptions may follow proof of ownership.” Blashfield‘s Cyc. of Auto. Law and Practice, Vol. 9B, p. 528. See also 5 Am. Jur., Automobiles, Sec. 611.
We decline the suggestion of plaintiff‘s counsel to adopt a rule holding that upon the facts of the instant case a rebuttable presumption or inference arises that Donald Wilson was driving his automobile at the time of the fatal crash. Whether or not а rule as contended for by plaintiff should be adopted in this jurisdiction is a matter for the General Assembly.
In order to recover plaintiff must establish that Donald Wilson was negligently driving his automobile at the time of the wreck, and that his negligence was a proximate cause of his intestate‘s death.
There is no direct evidence that Donald Wilson was driving his automobile shortly prior to the wreсk, and no direct evidence that he was driving his automobile at the critical moment. Is there sufficient evidence, considered in the light most favorable to the plaintiff, to carry the case to the jury that Donald Wilson was driving his automobile at the time of the wreck?
The first man at the scene of the wreck was H. W. Holton, who heard the crash. When he arrived, Bonnie Patrick and Donald Wilsоn were in the front seat with the back seat thrown up on top of them against the windshield. Donald Wilson was on the right side of the front seat with his head partially out of the windshield. Bonnie Patrick was to his left with her head lying on the switch key and the steering column. Her left arm was up over the steering wheel, hanging onto it, and she was sort of down with her head against the rod of the steering wheel, and her left hаnd was over the steering wheel. A pool of blood was directly under the switch key where her head was resting. Her right foot was under the gas pedal from the right side, and her left foot was to the left of the steering column. A woman‘s shoulder bag was hanging on the window latch of the left door. The steering wheel of the automobile was on the left side. The switch key was just a few inches to the right of the steering column.
Bonnie Patrick was unconscious, and died later without speaking. Donald Wilson was dead or unconscious. Their bodies were taken out on the right side of the automobile. Some of Bonnie Patrick‘s hair was fоund on the right-hand side of the dashboard. Did her hair get on the dashboard when the automobile hit the tree at terrific speed, or when her body after the collision was taken out on the right side of the automobile? Any answer would be a pure guess.
Donald Wilson received in the collision a crushed chest. The dent in the dashboard was on the right side, and his body was found on the right side with his head partiаlly out of the broken windshield. Bonnie Patrick, so far as the doctor knew, had no chest injuries.
When in a case like this, the plaintiff must rely on the physical facts, and other evidence, which is circumstantial in nature, to show that Donald Wilson was driving the automobile at the time of the wreck, he must establish attendant facts and circumstances which reasonably warrant such inference. Whitson v. Frances, 240 N.C. 733, 83 S.E. 2d 879; Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670. Such inference cannot rest on conjecture or surmise. Sowers v. Marley, supra. “The infеrences contemplated by this rule are logical inferences reasonably sustained by the evidence, when considered in the light most favorable to the plaintiff.” Whitson v. Frances, supra. “A cause of action must be something more than a guess.” Lane v. Bryan, 246 N.C. 108, 97 S.E. 2d 411. A resort to a choice of possibilities is guesswork, not decision. Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E. 2d 392. To carry his case to the jury the plaintiff must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts.
When the automobile struck the tree at tremendous speed, and the front seat was brought forward almost as far as it could possibly go, and the back seat was pulled loose and thrown up against the windshield on top of the occupants of the front seat, it would seem that there was no opportunity for thе occupants of the front seat to have changed the position in which they were sitting immediately prior to the crash. It would further seem that the crash hurled Donald Wilson‘s head partially out of the windshield on the right side and with his head in that position his body could not have changed from the posi-
Affirmed.
HIGGINS, J., dissenting. The evidence is plenary that the driver of the car was negligent and that that negligence proximately caused the death of both occupants. I think the evidence sufficiently indicates that Donald Wilson was the driver to require the submission of appropriate issues to the jury.
Wilson was the owner of the car. He called at her boarding-house for Bоnnie Patrick. They left together in his car between nine and ten at night on December 23, 1954. The fatal wreck occurred a few minutes after 12 that night. The evidence with respect to the wreck is fairly stated in the opinion of the Court. The question is: Which of the occupants was the driver?
There is no evidence Miss Patrick had ever driven Wilson‘s car, or even that she knew how to drive. Wilson hаd a broken neck, crushed chest, broken right femur, and dislocation of the left hip joint. Miss Patrick had severe facial lacerations extending across the base of her nose to her left forehead, with multiple fractures of the underlying bones, a rupture of the right eye, and an open wound extending into the front part of the brain. She had no chest injuries. The lower half of the steeringwheel was bent downward.
It would seem natural and probable that the driver held on to the steeringwheel until the crash and that the body or chest of the driver would be hurled against the steeringwheel and the neck snapped. Wilson‘s chest was crushed and his neck broken. Miss Patrick had only head—no chest or neck injuries. There was a dent in the instrument board near the center and blood and brown hair imbedded. Miss Patrick had brown hair. Wilson‘s hair was black.
The tremendous speed of the car and the violence of its impact into the tree certainly could have reversed the positions of the driver and the passenger. I think the problem as to which was the driver and which was the passenger should be settled