Pusey v. Atlantic Coast Line Railroad

106 S.E. 452, 181 N.C. 137, 1921 N.C. LEXIS 31

• Court: Supreme Court of North Carolina
• Decided: March 23, 1921
• Status: Published

Opinion

AlleN, J.

The charge states clearly the contentions of the parties, and covers the first and third exceptions by specific instructions.

The courts recognize the doctrine included in the second prayer for-instruction, but, as is said in Withey v. Fowler, 164 Iowa, 377: “It is. somewhat difficult to state a comprehensive definition of what constitutes á joint enterprise as applied to this class of cases, but it is perhaps sufficiently accurate for present purposes to say that to impute a driver’s negligence to another occupant of his carriage, the relation between them must be shown to be something more than that of host or guest, and the mere fact that both have engaged in the drive because of the mutual pleasure to be derived does not materially alter the situation.”

The rule seems to be: “That the occupant of the automobile must be in a position to assume the control or control in some manner the means of locomotion. Lawrence v. Sioux City (Ia.), 154 N. W., 494, and it has been held that the fact the driver and the occupant were mutually engaged in a pleasure ride did not create a joint enterprise. Withey v. Fowler Co., 164 Ia., 377; Beard v. Klusmeier, 158 Ky., 153; Ann. Cas., 1915 D, 342.”

In Hunt v. R. R., 170 N. C., 442, this principle was adopted, the Court saying: “Furthermore, it is held by the greater weight of authority that negligence on the part of the driver of an automobile will not as a rule be imputed to another occupant or passenger unless such other occupant is the-owner or has some kind of control over the driver. This is undoubtedly the view prevailing in this State. See a learned opinion on the subject by Associate Justice Douglas in Duval v. R. R., 134 N. C., 331, citing Crampton v. Ivie, 126 N. C., 894, both of these decisions being approved in the more recent case of Baker v. R. R., 144 N. C., 37. See, also, Bagwell v. R. R., 167 N. C., 611; McMillan v. R. R., 172 N. C., 853.”

In this case there is no evidence that Pusey had any control over the car, and therefore none that he was engaged in a joint enterprise with Y ann, and, on the contrary, all the evidence is that Y ann was the owner and driver of the car; that Pusey was a guest riding for the pleasure of the trip, and had no control over the car and nothing to do with driving it.

The prayer, therefore, had no evidence to support it, and could not have been given.

The fourth prayer for instruction is objectionable in several respects. It required the submission to the jury of the question of Yann and Pusey being engaged in a joint enterprise when there was no evidence to support it, and it contains the direction to the jury that going to Fayette-ville for recreation is a joint enterprise, which, as we have seen, is not in accord with the authorities.

It also imposed the duty on Pusey to remonstrate, although he might not have known that Yann was exceeding the speed limit.

The fifth exception is to a part of the charge which is substantially copied from Raper v. R. R., 126 N. C., 563, approved in Tate v. R. R., 168 N. C., 523, and the sixth to a charge which is fully sustained by Bagwell v. R. R., 167 N. C., 616.

After careful consideration of the record and briefs, we conclude that the judgment ought to be affirmed.

No error.

Stacy, J., took no part in the decision of this case.