Blevins v. FranceAnnotate this Case
93 S.E.2d 549 (1956)
244 N.C. 334
Rebecca M. BLEVINS, Administratrix of the Estate of William W. Blevins v. William H. G. FRANCE, National Association for Stock Car Auto Racing, Inc., James F. Chestnutt, Dixieland Speedways, Inc., and J. & W. Corporation.
Supreme Court of North Carolina.
June 26, 1956.
*554 J. Dickson Phillips, Jr., Sanford, Phillips & Weaver, Fayetteville, for plaintiff, appellant.
Tally, Tally & Brewer, Fayetteville, and Long, Ridge, Harris & Walker, Graham, for defendants, appellees.
The plaintiff alleges in her complaint five acts of negligence. She alleges that the defendants were jointly, severally and concurrently negligent and careless in that they wilfully, wantonly and intentionally (1) failed to treat the unpaved portion of the track to hold down dust, and failed to provide a safe track on which said race could be run in reasonable safety, and (2) appointed an inexperienced man, well knowing him to be inexperienced, to control the race as starter. The plaintiff has offered no evidence at all to support the above two allegations as to negligence. The other three allegations as to acts of negligence are to the effect that the defendants started the race when they knew, or by the exercise of due care could have known, that the deceased Blevins was in a dangerous, exposed and helpless condition, and that they knew, or by the exercise of due care could have known, that he was apt to be killed, if the race was started.
The official program listed defendants France and Chestnutt as directors of the race. France engaged the starter of the race, and drove the pace car. Plaintiff's evidence taken in the light most favorable to her, as we are required to do on a motion for nonsuit, is sufficient to make out a case of actionable negligence against the defendants on the theory that all of them were engaged in the business of promoting, arranging and conducting the race and were guilty of concurrent negligence. Midkiff v. National Ass'n for Stock Car Auto Racing, 240 N.C. 470, 82 S.E.2d 417; Fairmont Union Joint Stock Agr. Ass'n v. Downey, 146 Ind. 503, 45 N.E. 696; North Manchester Tri County Agr. Association v. Wilcox, 4 Ind.App. 141, 30 N.E. 202.
However, considering the evidence in the same light, it is not sufficient to establish wilful or wanton injury so as to preclude *555 the defense of contributory negligence. Brendle v. Spencer, 125 N.C. 474, 34 S.E. 634; Fry v. Southern Public Utilities Co., 183 N.C. 281, 111 S.E. 354; 38 Am.Jur., Negligence, sec. 178. This Court said in Foster v. Hyman, 197 N.C. 189, 148 S.E. 36, 37: "An act is done willfully when it is done purposely and deliberately in violation of law (State v. Whitener, 93 N.C. 590; State v. Rowland Lumber Co., 153 N.C. 610, 69 S.E. 58), or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason. McKinney v. Patterson, supra [174 N.C. 483, 93 S.E. 967]. `The true conception of wilful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law.' Thompson on Negligence (2 Ed.), § 20, quoted in Bailey v. North Carolina R. R. Co., 149 N.C. 169, 62 S.E. 912. An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. Everett v. Receivers, 121 N.C. 519, 27 S.E. 991; Bailey v. North Carolina R. R. Co., supra. A breach of duty may be wanton and wilful while the act is yet negligent; the idea of negligence is eliminated only when the injury or damage is intentional. Ballew v. Asherville & E. T. R. R. Co., 186 N.C. 704, 706, 120 S.E. 334."
We are now confronted with the question of contributory negligence on the part of plaintiff's intestate. When the defendant pleads contributory negligence, and the plaintiff's evidence establishes such negligence so clearly that no other conclusion may be reasonably drawn therefrom, the defendant is entitled to have his motion for judgment of nonsuit sustained. Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361.
Plaintiff's negligence to bar recovery need not be the sole proximate cause of injury or death. It suffices, if it contributes to his injury or death as a proximate cause, or one of them. Sheldon v. Childers, 240 N.C. 449, 82 S.E.2d 396; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Parkway Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E.2d 623; Moore v. Boone, 231 N.C. 494, 57 S.E.2d 783.
This Court said in Mintz v. Town of Murphy, 235 N.C. 304, 314, 69 S.E.2d 849, 858: "The law imposes upon a person sui juris the obligation to use ordinary care for his own protection, and the degree of such care should be commensurate with the danger to be avoided."
Plaintiff's evidence shows plainly these facts: Her intestate, 24 years old, was a body man in charge of the body shop of N. W. Horne's Garage, and skilled sufficiently in such work to have made at it $7,000 the year before his death. He voluntarily participated the night of his death in the dangerous sport of automobile racing, hazardous to life and limb, as a contestant for the prize money offered by the promoters of the race. He had participated before in 7 or 8 such races, and in one his racing car turned over. He willingly took his part in such a race with about sixty other racing cars, and knew the dangers that inhered in it so far as they are obvious and necessary. The timorous may stay at home. The car he had on the track for the race had a rebuilt V-8 Mercury motor, which he had worked on all night prior to the night of his death. The motor was rebuilt so strong that the battery did not have sufficient voltage to start the motor. To start the motor the car had to be pushed off. Knowing this fact his car was pushed off and with about sixty other racing cars he began to follow France around the track in the pace car preliminary to the start of the race. Near the first bend his car stalled. The clear inference is that his rebuilt motor finished the night before was not properly functioning. A car pushed him off starting his motor again, and instead of driving off the track into a safety zone, he started to circle the track well knowing *556 that the start of the race with about sixty cars was imminent. About the middle of the back stretch his car stalled and stopped again. He could have unsnapped his safety belt and the band on the car door, and have stepped out and reached a place of safety in a few seconds. He remained in his stalled car. With sixty racing cars the drivers in the cars behind the leaders could not see the stalled car until the leaders swerved around it. When the green flag dropped, the drivers gunned their motors, which made a loud noise, and the racing cars roared away. In their path was his stalled automobile, a hazard that he created after his car had stalled the first time and had been pushed off by driving it some distance on the track until it stalled again instead of driving onto a safety zone, and this hazard not only resulted in his death but also in the death of Midkiff, who ran into his stalled car. "A plaintiff will not be permitted to recover for injuries resulting from a hazard he helped to create." Blake v. Great Atlantic & Pacific Tea Co., 237 N.C. 730, 75 S.E.2d 921, 922.
This is not a case where a motor stalls suddenly without warning leaving a car in a dangerous situation. Here Blevins had had warning when the motor stalled on the track at the first bend.
The plaintiff contends that the doctrine of sudden emergency should be applied to Blevins' failure to get out of his car after it stalled on the back stretch. This "principle is not available to one who by his own negligence has brought about, or contributed to the emergency." Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593, 598. That Blevins was negligent, after his car stalled at the first bend, and was pushed off, in continuing to circle the track until his motor stalled in the back stretch, instead of driving to a safety zone, is plain. This negligence brought on, or contributed to the sudden emergency.
The plaintiff further contends that Blevins "realized that a terrible danger was presented, not only to it (his car) and himself, but to all the cars and their drivers coming on; the only way for it to be got off the track was for him to guide it off, either under its own power or by propulsion from another car; when he left it, the die would be cast; accordingly, he is entitled to the extremely reasonable inference that he stayed with the car to get it off the track to prevent collision, this is bolstered by the uncontradicted testimony that another car came in behind him in position to push." When the race started, this car behind Blevins' car pulled off onto a safety apron. Plaintiff invokes the rescue doctrine set forth in Alford v. Washington, 238 N.C. 694, 78 S.E.2d 915; Norris v. Atlantic Coast Line R. R., 152 N.C. 505, 67 S.E. 1017, 27 L.R.A.,N.S., 1069; 38 Am.Jur., Negligence, sec. 228. This is not a case of one who sees a person in imminent and serious peril caused by the negligence of another. The "terrible danger" of Blevins' stalled car was a peril Blevins created by his own negligence. When the green flag dropped, we do not know the speed of the racing cars as they approached Blevins' car, the time it took the leading cars to reach his car, and the evidence does not show whether Blevins had time to get out of his car after the race started before the racing cars began to pass. Whether he tried to get out of his car or not, the evidence does not show. It may be that he tried to get out, and his car was struck before he could do so. It may be that he did not try to get out, but stayed in the car hoping that it would be pushed off so that he could participate in the race for the prize money, as he did when it first stalled, or could get it off the track. It is all conjecture and speculation. There is no evidence, or any reasonable inference to be drawn therefrom, to support the contention that the rescue rule applies.
The evidence showing that Blevins drove on the track for the race of about sixty cars a car that he spent the prior night in rebuilding the motor, that the car could not be started unless it was pushed off, that *557 in the preliminary circling of the track by these cars in preparation for the race his car stalled on the first bend, that it was pushed off, and that he knowing the start of the race was imminent did not drive his car to a place of safety, but continued to circle the track until his car stalled again about the middle of the back stretch, and that in a matter of seconds the race began and a racing car ran into his car killing him and the driver of the other car, shows contributory negligence on Blevins' part so clearly that no other conclusion can reasonably be drawn therefrom, and such negligence contributed to his death as a proximate cause, or one of them. To defeat a recovery Blevins' negligence need not be the sole proximate cause of his death. Sheldon v. Childers, supra; Moore v. Boone, supra.
The serious questions argued in the briefs, as to whether the Release and Benefit Plan Registration signed by Blevins and asserted as an affirmative defense by the defendants are valid and enforceable and bar plaintiff's action, are not presented for decision in our consideration of the judgment of nonsuit entered, for the reason that plaintiff's evidence does not establish the truth of this affirmative defense as a matter of law. The burden of proof of this affirmative defense is upon the defendants, and these instruments were offered in evidence by the defendants. Under such circumstances no matter how clearly the affirmative defense appears in the evidence of the defendants a judgment of nonsuit may not be entered based on such affirmative defense. Hedgecock v. Jefferson Standard Life Ins. Co., 212 N.C. 638, 194 S.E. 86; MacClure v. Accident & Cas. Co., 229 N.C. 305, 49 S.E.2d 742.
In NASCAR, Inc., v. Blevins, 242 N.C. 282, 87 S.E.2d 490, there was an unsuccessful attempt to have the Court pass on the Benefit Plan Registration here under the Uniform Declaratory Judgment Act, G.S. § 1-253 et seq. The court did not rule on it for, as presented, the question was moot.
The automobile race at Raleigh Speedways in which Blevins was killed was a lawful contest. Chapter 177, 1949 Session Laws of North Carolina, prohibits motor-cycle and motor vehicle races on Sunday in Wake County. State v. Chestnutt, 241 N.C. 401, 85 S.E.2d 297. The race in which Blevins was killed was stopped at midnight.
Likewise the contract of the starter of the race with NASCAR was introduced in evidence by the defendants.
The judgment of nonsuit entered below is
HIGGINS, J., not sitting.