Thomas Sullivan ATKINS
v.
Eddie Lee MOYE and Barney Burke Transfer Company, Inc., a Corporation.
No. 16.
Supreme Court of North Carolina.
October 14, 1970.*792 Bennett, Kelly & Long, Asheville, for plaintiff appellee.
Van Winkle, Buck, Wall, Starnes & Hyde, Asheville, for defendants appellants.
SHARP, Justice.
The trial judge instructed the jury that by statute, G.S. § 20-138, it is unlawful for any person who is under the influence of intoxicating liquor to drive any vehicle upon the highways within this State and that a violation of this statute is negligence per se. Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1. He explained that a person is under the influence of intoxicating liquor within the meaning of the statute when he has drunk a sufficient quantity of intoxicating beverage to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties. State v. Carroll, 226 N.C. 237, 37 S.E.2d 688. Cf. State v. Painter, 261 N.C. 332, 134 S.E.2d 638. After reciting defendants' contention that plaintiff was operating his vehicle while under the influence of intoxicating liquor at the time of the collision, and after referring *793 to the evidence upon which defendants based this contention, the judge charged: "* * * [I]f the defendant has satisfied you by the greater weight of the evidence that on this occasion the plaintiff was operating his motor vehicle on this highway while he was under the influence of some intoxicating liquor, as I have defined that term to you, then that would be negligence on the part of the plaintiff. If you are further so satisfied that this contributed to the plaintiff's own injuries, then this would be contributory negligence upon the part of the plaintiff."
Plaintiff excepted to the foregoing charge on the grounds that (1) there was no evidence he was operating his automobile while under the influence of intoxicants; and (2) conceding, arguendo, there was such evidence, the judge did not, as then required by G.S. § 1-180, explain the application of G.S. § 20-138 to the evidence in the case. (G.S. § 1-180 is now applicable only to criminal cases. Civil cases are governed by N.C.R.C.P. 51(a), which incorporates the substance of the section.)
The Court of Appeals held that the evidence was not sufficient to warrant a finding by the jury that plaintiff was driving under the influence of an intoxicant. A new trial was ordered because it could not be known "whether the jury's answer to the second issue (contributory negligence) was based upon a finding, under the instructions of the court, that plaintiff was driving under the influence at the time of the accident." Defendants' appeal requires us to consider de novo plaintiff's assignments of error to the charge.
A defendant who asserts plaintiff's contributory negligence as a defense has the burden of proving it, and a contention that certain acts or conduct of the plaintiff constituted contributory negligence should not be submitted to the jury unless there is evidence from which such conduct might reasonably be inferred. A defendant, however, is entitled to have any evidence tending to establish contributory negligence considered in the light most favorable to him and, if diverse inferences can reasonably be drawn from it, the evidence must be submitted to the jury with appropriate instructions as to its bearing upon the issue. Jones v. Holt, 268 N.C. 381, 150 S.E.2d 759; Moore v. Hales, 266 N.C. 482, 146 S.E.2d 385; 6 N.C. Index 2d Negligence § 34 (1968).
The evidence upon which defendants base their contention that plaintiff was under the influence of an intoxicant at the time of the collision, taken as true and considered in the light most favorable to defendants, may be stated as follows: Plaintiff, traveling at 30 MPH upon a straight road, failed to see a tractor-trailer stopped in his lane of travel until he was ten feet from it although seven lightstwo of them blinking "trouble lights"were burning on the rear of the unit. He failed to see the two reflectors which Moye had placed in the highway, one at the rear of the trailer and the other twenty-five feet from it. He failed to see the "dialed" signal from Moye's flashlight, which he began to wave when he saw plaintiff's car approaching 400 feet away and continued to wave until he ran across the highway to avoid the collision. No westbound car passed. Plaintiff did not "break his speed" until he "rammed into the back of the trailer." Finally, Moye smelled the odor of alcohol on plaintiff's breath. Kincaid detected the odor of alcohol in plaintiff's automobile and on the floorboard under the front seat, there was a pint bottle containing a small amount of whiskey. The cap was on the bottle.
An odor of alcohol on the breath of the driver of an automobile is evidence that he has been drinking. Boehm v. St. Louis Public Service Co., 368 S.W.2d 361 (Mo.). However, an odor, standing alone, is no evidence that he is under the influence of an intoxicant, Baldwin v. Schipper, 155 Colo. 197, 393 P.2d 363, and the mere fact that one has had a drink will not support such a finding. McCarty v. Purser, 373 S.W.2d 293 (Tex.Civ.App.). Notwithstanding, *794 the "[f]act that a motorist has been drinking, when considered in connection with faulty driving * * * or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of G.S. § 20-138." State v. Hewitt, 263 N.C. 759, 140 S.E.2d 241.
We hold that the evidence of the "broken pint" and the odor of alcohol on plaintiff's breath and in his automobile, when taken in conjunction with his failure to take any action to avoid a collision with the truck, was sufficient to support a finding that plaintiff's faculties had been appreciably impaired by the consumption of an alcoholic beverage. It is quite true, as pointed out in the majority opinion of the Court of Appeals, that the only testimony of any odor of alcohol on plaintiff's breath came from defendant Moye. We also note that plaintiff testified he had consumed no alcoholic beverages all day and that he failed to see the truck because the lights of an approaching car, reflected on the wet, blacktop pavement, blinded him. The credibility of the witnesses and conflicts in the evidence, however, are for the jury, not the court. G.S. § 1-180, N.C.R.C.P. 51(a).
The vice of the instruction of which plaintiff complained in his appeal to the Court of Appeals is not that it permitted the jury to consider the question whether plaintiff was under the influence of alcohol at the time of the collision but that it failed to explain as required by G.S. § 1-180, what bearing such a finding, if made, would have upon the issue of plaintiff's contributory negligence.
Unquestionably a motorist is guilty of negligence if he operates a motor vehicle on the highway while under the influence of intoxicating liquor. Such conduct, however, will not constitute either actionable negligence or contributory negligence unlesslike any other negligence it is causally related to the accident. Shaw v. Phillips, 193 So. 2d 717 (Miss.); Lynn v. Stinnette, 147 Or. 105, 31 P.2d 764. Mere proof that a motorist involved in a collision was under the influence of an intoxicant at the time does not establish a causal relation between his condition and the collision. His condition must have caused him to violate a rule of the road and to operate his vehicle in a manner which was a proximate cause of the collision. State v. Lowery, 223 N.C. 598, 27 S.E.2d 638. In Anderson v. Morgan, 73 Ariz. 344, 241 P.2d 786, a truck, being operated in its proper lane by a defendant, who was under the influence of liquor, was struck by an automobile which crossed the center line of the highway to collide with it. In dismissing a wrongful death action against the defendant the court said: "[A]lthough appellant was found to be intoxicated, there is no substantial evidence in the record to support the finding that his operation of his truck at the time and place of the accident proximately caused the injury or death of appellee's intestate." Id. at 789. In other words, the cause of the collision was totally unrelated to the defendant's intoxication.
Here, in resolving the issue of plaintiff's contributory negligence, the crucial question is not whether he was under the influence of an intoxicant but whether he was exercising due care in the operation of his automobile. The rationale of Hoke v. Atlantic Greyhound Corp., 227 N. C. 412, 422, 42 S.E.2d 593, 600, is applicable. In that case the operator of a defendant's car was a child under 16. The court said: "The question is not as to her competency to drive, but whether she were operating the car at the time in accordance with the duty imposed by law upon operators of automobiles, that is, whether she were exercising that degree of care which an ordinarily prudent person would exercise under similar circumstances." See also Watters v. Parrish, supra.
Evidence tending to show that the operator of a motor vehicle was under the influence of liquor is a pertinent circumstance for the jury to consider, not as conclusively *795 establishing his negligence as a proximate cause of the collision if he was under the influence, but in determining whether he was capable of keeping a proper lookout, of maintaining proper control over his automobile, and of coping with highway and weather conditions in the manner of the reasonably prudent person. Boehm v. St. Louis Public Service Co., supra; Lynn v. Stinnette, supra; Bohlmann v. Booth, 196 So. 2d 507 (Fla.App.); Rhoades v. Atchison, T. & S. F. Ry. Co., 121 Kan. 324, 246 P. 994; Kirby v. Turner-Day & Woolworth Handle Co., D.C., 50 F. Supp. 469; see Annot., 26 A.L.R. 2d 359, 364; 8 Am.Jur.2d Automobiles and Highway Traffic § 939 (1963).
In Rick v. Murphy, 251 N.C. 162, 110 S.E.2d 815, plaintiff sued for personal injuries sustained in a collision between his automobile and a vehicle operated by the defendant Froneberger. Although plaintiff had not alleged a violation of G.S. § 20-138, the court held evidence of Froneberger's intoxication to be competent: "A physical condition which may cause a person to act in a given manner is merely evidentiary, not the ultimate fact on which liability must rest." Id. at 164, 110 S.E.2d at 817.
We hold that plaintiff is entitled to a new trial, but not because the judge submitted to the jury the question whether plaintiff was operating his automobile while under the influence of an intoxicant. The prejudicial error was the judge's failure to instruct that if the jury found plaintiff to have been under the influence such condition would merely be evidence to be considered along with all the other evidence in determining whether he was chargeable with contributory negligence; that for a finding that plaintiff was under the influence to be conclusive of the issue it must be accompanied by the further finding that such condition caused him to operate his automobile in a manner which constituted a proximate cause of the collision. Thus, we approve the decision of the Court of Appeals ordering a new trial but not the reasoning upon which it was based.
Affirmed.
HIGGINS, Justice (concurring in result).
In my opinion the plaintiff is entitled to a new trial. However, I am unable to agree that there is sufficient evidence in the record to warrant the court in permitting the jury to infer the plaintiff was driving under the influence of liquor, and upon that inference to draw the further inference he was guilty of contributory negligence. I concur in the result.