Walker ex rel. Walker v. Walker
256 N.C. 696
N.C.
1962
Check Treatment
Per Curiam.

Defendant concedes that plaintiff has made out a prima facie case of negligence on the defendant’s part, but contends that plaintiff should have been nonsuited for that: (1) plaintiff was contributorily negligent as a matter of law, and (2) the evidence of plaintiff’s mental incapacity is not sufficient to support a verdict on that issue.

*698The evidence tends to show that plaintiff ordinarily relied on members of his family for guidance, supervision and decisions. Under the circumstances of this case his failure to remonstrate with his brother for driving at an excessive speed raises, at most, an issue of contributory negligence for the jury. Contributory negligence as a matter of law does not appear. “Failure of a guest or passenger to remonstrate with the driver when the circumstances are such that a man of ordinary prudence would remonstrate is negligence, and may require the submission of the issue of the contributory negligence of the passenger to the jury, although it ordinarily will not be held to constitute contributory negligence as a matter of law.” 1 Strong: N. C. Index, Automobiles, s. 49, p. 301; Dinkins v. Carlton, 255 N.C. 137, 120 S.E. 2d 543.

The issue of mental capacity was for the jury. There is more than a scintilla of evidence to support plaintiff’s allegation that he lacked sufficient mental competence to execute a binding release. Mangum v. Brown, 200 N.C. 296, 156 S.E. 535.

The denial of defendant’s motion for special instructions will not be held as error. The charge is not in the record. We have no way of knowing what the charge actually contained.

In the trial below we find

No error.