Dorothy V. GILREATH, Administratrix of the Estate of Frank Gilreath, Jr., deceased,
v.
Jerry SILVERMAN.
No. 96.
Supreme Court of North Carolina.
November 21, 1956.*109 James S. Howell and William J. Cocke, Asheville, for plaintiff.
Harkins, Van Winkle, Walton & Buck, Asheville, for defendant.
DENNY, Justice.
A careful consideration of the evidence adduced in the trial below leads us to the conclusion that it is sufficient, when considered in the light most favorable to the plaintiff, as it must be on a motion for nonsuit, to take the case to the jury. Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727; Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377. Nor will nonsuit be allowed on the grounds of contributory negligence where there is a conflict of evidence, as there is in the instant case, as to the pertinent facts bearing on that issue. Levy v. Carolina Aluminum Co., 232 N.C. 158, 59 S.E.2d 632; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Hayes v. Western Union Telegraph Co., 211 N.C. 192, 189 S.E. 499.
"Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court." Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793, 794, and cited cases.
We refrain from a discussion of the evidence so as not to prejudice either party on the further hearing. We do point out, however, that the allegations in the defendant's further answer and defense, in which the defendant pleads that the plaintiff's intestate together with Howard Wolfe and the defendant were at the time complained of engaged in a joint enterprise and, therefore, any negligence with respect to the operation of the boat is in law imputed to plaintiff's intestate and constitutes a bar to any recovery in the action, are not well founded.
In Am.Jur., Negligence, section 238, page 925, it is said: "The doctrine of joint enterprise whereby the negligence of one member of the enterprise is imputable to others, resting as it does upon the relationship of agency of one for the other, does not apply in actions between members of the joint enterprise and does not, therefore, prevent one member of the enterprise from holding another liable for personal injuries inflicted by the latter's negligence in the prosecution of the enterprise. In other words, the doctrine of common or joint enterprise as a defense is applicable only as regards third persons and not parties to the enterprise." Rollison v. Hicks, 233 N.C. 99, 63 S.E.2d 190.
The appellee also alleges that the plaintiff's intestate assumed the risk and hazard which brought about his death and argues that such assumption of risk and his contributory negligence constitute a bar to any recovery in this action.
The doctrine of assumption of risk is not available as a defense where there is no contractual relationship between the parties. Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398; Broughton v. Standard Oil Co., 201 N.C. 282, 159 S.E. 321.
The judgment of the court below is reversed.
Reversed.
JOHNSON, J., not sitting.