W. G. H. WEATHERMAN, Administrator of the Estate of Arnold Cleveland Weatherman
v.
Ernestine Steelman WEATHERMAN, Administratrix of the Estate of Paul G. Weatherman.
No. 458.
Supreme Court of North Carolina.
April 19, 1967.*861 Roberts, Frye & Booth, by Leslie G. Frye and Parks Roberts, Winston-Salem, for plaintiff appellant.
Womble, Carlyle, Sandridge & Rice, by H. Grady Barnhill, Jr., and David A. Irvin, Allan R. Gitter, Winston-Salem, for defendant appellee.
PLESS, Justice.
There was sufficient competent evidence to sustain the jury's finding of contributory negligence as to the plaintiff's intestate.
Summarized, 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 *862 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's Esso Station, that he didn't like the way Paul was driving. At the gas station Edwards got out of the car, but Arnold remained in it.
Paul's car had four forward speeds, a four-barrel carburetor, 426 cubic inch engine with a tachometer. Paul told the witness Bobbitt in Arnold's 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 Stratford Ramp. He also told Bobbitt that he would like to race him some time.
Later, at the Triangle Drive-In, Paul jumped out of his car, waived a pistol in the air, and asked the boys there if they were looking for trouble, that he didn't care whether he lived or died. Arnold told B. S. Weinstein that Paul was drinking, and Weinstein testified that Paul didn't 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.
The following statement from Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162, is pertinent:
"* * * 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.
"A guest, entering an automobile, assumes the dangers incident to the known incompetency, inexperience and driving habits of the driver. 4 Blashfield, Cyc. of L. & P., Perm.Ed., § 2512, p. 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, Cyc. of L. & P., Perm.Ed., § 2393, p. 197.
"`When 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's predisposition to operate the vehicle in an irresponsible manner.' 4 Blashfield, Cyc. of L. & P., Perm.Ed., § 2512, p. 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, Cyc. of L. & P., Perm.Ed., § 2515, p. 336; Cline v. Prunty, 108 W.Va. 635, 152 S.E. 201; Pawlowski v. Eskofski, 209 Wis. 189, 244 N.W. 611; Knipfer v. Shaw, 210 Wis. 617, 246 N.W. 328, 247 N.W. 320.
"The guest cannot acquiesce in negligent driving and retain a right to recover against the driver for resulting injuries therefrom. 4 Blashfield, Cyc. of L. & P., Perm.Ed., § 2392, pp. 194-195; Lorance v. Smith, 173 La. 883, 138 So. 871; Royer v. Saecker, 204 Wis. 265, 234 N.W. 742. The basis for charging the passenger with negligence in such case is simply that of his own personal negligence in thus relying entirely and *863 blindly upon the driver's care. Russell v. Bayne, 45 Ga.App. 55, 163 S.E. 290; Lambert v. Eastern Massachusetts St. Railway Co., 240 Mass. 495, 134 N.E. 340, 22 A.L.R. 1291; Heyde v. Patten, Mo.App., 39 S.W.2d 813."
The 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.
Under 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's case was substantially damaged by the admission of the following incompetent evidence.
Upon the theory that Paul and Arnold were brothers who were very close to each other and "ran around together" 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's objection as follows:
"Q. You knew that in March of 1964 he was convicted of reckless driving, didn't you?
MR. FRYE: Well, I object, if your Honor please.
THE COURT: OVERRULED. EXCEPTION NO. 116
A. Yes, I did.
"Q. And you knew that in March of 1964 he was convicted of driving after his license were revoked, didn't you?
MR. FRYE: I object. EXCEPTION NO. 117
A. No. No.
"Q. And you knew that he had been convicted of driving an automobile intoxicated, didn't you?
MR. FRYE: I object.
THE COURT: OVERRULED. EXCEPTION NO. 118
A. I don't remember. I remember that he was charged with reckless driving. I don't remember the other. I would be afraid to say.
"Q. All right. But you do know that in November 1962 he was convicted of driving intoxicated and his licenses were taken, don't you?
MR. FRYE: Objection. She said she didn't have any other knowledge other than reckless driving.
THE COURT: OVERRULED. EXCEPTION NO. 119
A. I'd be afraid to say.
"Q. Well, you had heard about it, hadn't you?
A. Hearing and knowing is two different things.
THE COURT: Just answer his question.
"Q. You had heard about this?
A. I suppose so. He was my nephew, I knew his license were taken away from him.
"Q. You know that he got caught driving after his license were revoked?
MR. FRYE: I object.
*864 THE COURT: OVERRULED. EXCEPTION NO. 120
A. (No answer)
"I 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.
"Q. And at the time he was caught for reckless driving, he was traveling at a high rate of speed, wasn't he?
MR. FRYE: I object, if your Honor please.
THE COURT: OVERRULED. EXCEPTION NO. 121
A. I suppose so.
"Q. As a matter of fact, the speed was 90 miles an hour, wasn't it?
MR. FRYE: Now, I object.
A. I do not know.
THE COURT: OVERRULED. EXCEPTION NO. 122"
This 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's 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.
The questions and answers are incompetent and highly prejudicial. The plaintiff's exceptions are well taken, and he is entitled to a
New trial.