Parker v. Witty, 216 N.C. 577 (1939)

Dec. 13, 1939 · Supreme Court of North Carolina

216 N.C. 577

ANN PARKER v. MARK R. WITTY and ERNEST CURTIS, by His Guardian Ad Litem, D. E. CURTIS, and D. E. CURTIS.

(Filed 13 December, 1939.)

Automobiles § 21 — Allegations held not to disclose intervening negligence insulating demurring defendants’ negligence as a matter of law.

Tbe complaint in tbis action alleged tbat plaintiff was riding as a guest in a ear tbat was being pushed by another car, tbat tbe defendant who was guiding or driving tbe car was under tbe influence of liquor and was driving on tbe left of tbe center of tbe street, without proper control and lookout, and tliat the ear collided with another automobile driven by another defendant who was operating his car while under the influence of liquor, at an excessive speed, and on the wrong side of the street. Held: The allegations of negligence on the part of the driver of the other car does not disclose, as a matter of law, intervening negligence insulating the alleged negligence of the driver of the car in which plaintiff was riding, and the demurrer of the owner and the driver of the car in which plaintiff was riding was properly overruled.

Appeal by defendants Ernest Curtis and D. E. Curtis from Clement, J., at October Term, 1939, of Guilfoed.

Affirmed.

Moseley <& Holt and Herbert S. Falle for plaintiff, appellee.

Smith, Wharton & Hudgins for defendants, appellants.

Schenck, J.

Tbis is an appeal from a judgment overruling demurrer of tbe défendants Ernest Curtis and D. E. Curtis.

Tbe allegations of tbe complaint are to tbe effect tbat tbe plaintiff was riding as a guest in an automobile owned by tbe defendant D. E. Curtis, wben operated by bis son and agent Ernest Curtis; tbat tbe Curtis car was being driven in a northerly direction on Asbeboro Street in tbe city of Greensboro and collided witb an automobile driven by tbe defendant "Witty in a southerly direction on said street; tbat tbe Curtis car was not running under its own power but was being pushed from tbe rear by an automobile driven by one Roy Bunting while being guided by Ernest Curtis, and tbat upon going around a curve in tbe street tbe Curtis car was guided over tbe center of tbe street to its left of tbe center thereof, tbat tbe Witty car, approaching from tbe opposite direction was driven by tbe defendant Witty, under tbe influence of intoxicating liquor, over tbe center of tbe street to its left of tbe center thereof, and tbat tbe two cars collided witb great force, thereby proximately causing injury to tbe plaintiff; tbat tbe driver of tbe Curtis car, tbe defendant Ernest Curtis, failed to have proper control of bis car, was operating said car while under tbe influence of intoxicating liquor, and failed to keep a proper lookout for other vehicles approaching from tbe opposite direction.

We are of tbe opinion, and so bold, tbat tbe allegations of negligence on tbe part of Ernest Curtis, driver of tbe Curtis car, are sufficient to overthrow tbe demurrer of tbe defendants Ernest Curtis and D. E. Curtis. It cannot be held as a matter of law tbat tbe alleged negligence of tbe defendant Witty in operating bis car while under tbe influence of liquor, at an excessive speed on the left side of tbe street insulated tbe alleged negligence of tbe defendant Ernest Curtis in driving bis car under tbe influence of liquor, and on tbe left of tbe center of tbe street, without proper control and lookout. Whether tbe negligence of tbe defendant Witty insulated tbe negligence of tbe demurring defendants and. became tbe sole proximate cause or was merely one of tbe concurrent proximate causes of tbe plaintiff’s injury is a question to be determined by tbe jury upon tbe evidence adduced and under proper instructions from tbe court.

Tbe judgment of tbe Superior Court is

Affirmed.