109 S.E. 564 | N.C. | 1921
Civil action to recover damages for an alleged negligent injury to plaintiff in a collision between a Ford automobile, in which the plaintiff was a passenger, and a truck belonging to the defendant.
Upon denial of liability and issues joined, the jury returned the following verdict:
"1. Was the plaintiff's injury caused by the negligence of the defendant, as alleged in the complaint? Answer: `Yes.'
"2. What damages, if anything, is the plaintiff entitled to recover? Answer: `$2,500.'"
From a judgment on the verdict in favor of plaintiff, the defendant appealed. *573 This is an action brought by W. L. White to recover damages for an alleged negligent injury caused by a collision between a Ford automobile, in which the plaintiff was riding as a passenger, and the defendant's truck, said collision occurring on West Trade Street in the city of Charlotte at an early morning hour on 23 September, 1920.
There was evidence tending to show that the defendant's truck was standing at the intersection of Linden Avenue and West Trade Street in a manner violative of a traffic ordinance of the city, when the Ford automobile, owned and driven by one E. H. McQuay, and in which the plaintiff was riding as a passenger, ran into and collided with the defendant's truck, causing serious and permanent injuries to the plaintiff. The accident occurred about 7:30 a.m. during a heavy equinoctial storm, when the fog, rain, and wind made it difficult for the occupants of the car to see very far ahead.
The evidence was conflicting as to the exact position of the truck at the time of the injury, and as to whether the defendant's driver had violated any of the traffic ordinances of the city of Charlotte; but, under his Honor's charge, the jury have found these matters in accordance with the plaintiff's contention.
From all the evidence it clearly appeared that the plaintiff was a passenger in McQuay's car, and exercised no authority or control over its management, and had nothing to do with the manner in which it was driven.
Upon these, the facts chiefly relevant, we think the defendant's motion for judgment as of nonsuit was properly overruled.
Conceding that McQuay, the owner and driver of the Ford machine, was negligent, as it is quite apparent from the evidence he was, yet this would not shield the defendant from suit if its negligence was also one of the proximate causes of the plaintiff's injury. Crampton v. Ivie,
In Harton v. Tel. Co.,
His Honor correctly charged the jury that if the negligence of McQuay, the owner and driver of the Ford car, was the sole and only proximate cause of plaintiff's injury, the defendant would not be liable; for, in that event, the defendant's negligence would not have been one of the proximate causes of the plaintiff's injury. Bagwell v. R. R.,
There is no contention that the negligence of McQuay, the driver of the Ford car, is in any way imputable to the plaintiff, who, at the time, occupied the position of a passenger in said car. In a number of cases it is stated, as a general rule, that the negligence of the driver of an automobile will not be imputed to one who is a passenger therein, unless such passenger be the owner of the car, or unless he exercise some kind of control or authority over the driver. This position has been approved by us in a number of decisions, and is undoubtedly the prevailing view. Pusey v.R. R.,
The defendant relies upon its exception to the following portion of his Honor's charge: "If the plaintiff has satisfied you by the greater weight of the evidence that the defendant was negligent, as I have attempted to apply the rules of law, as the court observes it from the evidence in this case, you will answer the first issue `Yes.'"
This excerpt, standing alone, might appear to be erroneous, but in the very next sentence his Honor continued: "If the plaintiff has failed to satisfy you that the defendant was negligent, or that, if he was negligent, that it was not a proximate cause of the injury, then you would answer the first issue `No.'"
In other portions of the charge the court correctly stated the law *575
as bearing upon this point; and when we consider the charge as a whole, as we are required to do, it is clear that the jury could not have been misled by this slight inadvertence. Besides, it was immediately corrected in the following sentence; and this shows the necessity of examining the charge, not disconnectedly, (539) but as a whole, or at least the whole of what was said regarding any one phase of the case, or law bearing thereon.Moore v. Lumber Co.,
No sufficient reason for disturbing the verdict and judgment having been shown, the exceptions must be overruled; and it is so ordered.
No error.
Cited: Tyree v. Tudor,
