Heggie, Hunter D.

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University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 28 | Number 3 Article 74-1-1950Automobiles -- Guest's Duty -- ContributoryNegligence as a Matter of LawHunter D. HeggieFollow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationHunter D. Heggie, Automobiles -- Guest's Duty -- Contributory Negligence as a Matter of Law, 28 N.C. L. Rev. 302 (1950).Available at: http://scholarship.law.unc.edu/nclr/vol28/iss3/7TheNorth CarolinaLaw ReviewVOLUME 28 APRIL, 1950 NUMIIER 3STUDENT BOARD OF EDITORSROBERT D. LARSEN, Editor-in-ChiefMAX 0. COGBURN, Associate EditorHUBERT B. HUMPHREY, JR., Associate EditorLINDSAY C. WARREN, JR., Associate EditorVIcTOR S. BRYANT, JR. RODBEY M. LIGON, JP.WILLIS C. BUMGARNER GEORGE J. RABILWILLIAM V. BuRRow CLYDE T. ROLLINSEMERY B. DENNY, JR. W. BRAXTON SCHELLLLOYD S. ELKINS, JR. BASIL SHERRILLCHARLES L. FULTON JAMES L. TAPLEYHUNTER D. HEGGrE MASON P. THOMAS, JR.KENNETH R. HOYLE RICHARD E. WAaRLoWCHARLES E. KNOX PARKER WHEDONROBERT M. WILEYBAR EDITORA. W. SAPPFACULTY ADVISORSWILLu B. AYcocK JOHN P. DALZELLHERBERT R. BAER FRANK W. HANFnHENRY P. BRANDIS, JR. FREDERICK B. MCCALLM. S. BRECKENRIDGE M. T. VAN HECKEALBERT COATES ROBERT H. WETTACHThis issue contains a note by KIRBY SULLIVAN, a former member of the LAWREVIEW staff-now a member of the North Carolina Bar, and J. C. JOHNSON, JR.,a student at the University of North Carolina Law School.Publication of signed contributions from any source does not signify adoptionof the views expressed by the LAW REVIEW or its editors collectively.NOTES AND COMMENTSAutomobiles-Guest's Duty-Contributory Negligenceas a Matter of LawThe Virginia Supreme Court in Butler v. Dardeit' recently heldthat under certain circumstances as a matter of law the guest rider ina car has a duty to warn the driver of approaching dangers. The factsshow that plaintiff guest was sitting in the front seat of defendant'scar. The car was approaching a railroad crossing, with which the guest1189 Va. 459, 53 S. E. 2d 146 (1949).NOTES AND COMMENTSwas familiar, at ten miles per hour, and the guest did not, until withinten feet of the tracks, give any warning of the train which crashed intothe automobile in which he was a passenger. The Court held that fail-ure of plaintiff to give warning was contributory negligence as a matterof law and set aside a verdict for plaintiff. Mr. Justice Cardozo incriticizing a like result under similar circumstances pointed out thatnegligence of the guest is to be determined by the facts and circum-stances of the particular case 2 Consideration of whether the passengerbelieved the driver would take the necessary precautions, whether awarning was needless, or whether the warning of the guest might bedangerous were all possibilities to be weighed by triers of the facts.The North Carolina view is that it is the duty of the guest to keep areasonable lookout for trains as the automobile approaches the tracks,and to warn the driver of any impending danger of a collision if it isapparent to the guest that the driver has not seen the engine, or havingseen it, does not appreciate the danger of a collision.8In the principal case the Court considers the position of the guestin the car, his familiarity with the road, and other factors as imposingon the guest a high degree of care for his own safety. Poor visibilityhas been considered by other courts as requiring from the guest asharper lookout.4 Certainly, if circumstances determine the degree ofaltertness required, poor visibility should demand that the guest keepa more alert watch for dangers.Generally a distinction is made between the duty imposed on theguest rider approaching a busy street intersection as compared with hisduty at a railroad crossing. The failure to give warning, if the guesthad a chance to look, at a railroad intersection is contributory negligenceas a matter of law, but at a highway crossing, contributory negligenceof the guest is generally a jury question. 5 The basis for the distinctionis premised on the inability of trains to stop as quickly as automobilesor to turn aside to avoid any obstacle upon the track.6 Considering the'Baker v. Lehigh Ry., 248 N. Y. 131, 161 N. E. 445 (1928).'Johnson v. Atlantic Coast Line Ry., 205 N. C. 127, 170 S. E. 120 (1933);Smith v. Atlantic & Y. Ry., 200 N. C. 177, 156 S. E. 508 (1931) ; See Notes, 11N. C. L. Rzv. 349 (1932), 9 N. C. L. REv. 98 (1930).'Ames v. Terminal Ry. Ass'n, 332 Ill. App. 187, 75 N. E. 2d 42 (1947);Gilly v. Harris, 152 So. 378 (La. App. 1934) ; Peasley v. White, 129 Me. 450, 152Atl. 530 (1930); Adams v. Hutchinson, 113 W. Va. 217, 167 S. E. 135 (1932);But cf. Uren v. Purity Dairy Co., 252 Wis. 446, 32 N. W. 2d 615 (1948).'Hill v. Lopez, 228 N. C. 433, 45 S. E. 2d 296 (1947) ; Campion v. Eakle, 79Colo. 320, 246 Pac. 280 (1926) ; Hunsavage v. Rocek, 74 Colo. 163, 219 Pac. 1080(1923) ; Earhart v. Treatbar, 148 Kan. 42, 80 P. 2d 4 (1938) ; Moore v. Retz, 314Mich. 52, 22 N. W. 2d 68 (1946) ; Landy v. Rosenstein, 325 Pa. 209, 188 Atl. 855(1937) ; Hancock v. Norfolk & W. Ry., 149 Va. 829, 141 S. E. 849 (1928) ; Gilker-son v. Baltimore & 0. Ry., 129 W. Va. 649, 41 S. E. 2d 188 (1946) ; Jones v.Virginia Ry., 115 W. Va. 665, 177 S. E. 621 (1934).'Chicago & N. W. Ry. v. Golay, 155 F. 2d 842 (10th Cir. 1946) ; Leclair v.Boudreau, 101 Vt. 270, 143 Atl. 401 (1928).1950]NORTH CAROLINA LAW REVIEWhigher speeds obtained by cars and the greater number of highway inter-sections, should a lesser duty be required at a highway intersection thanat a railroad crossing? The more logical solution would be to let thejury determine that degree of care required in both situations.Passengers of automobiles take note: the back seat is at a premium.The occupant of the back seat has less duty of lookout than if he werein the front seat." Mr. Justice Cardozo criticized as contrary to thecommon standard of conduct the rule requiring the same duty of lookoutby a guest, whether in the front or back seat, when approaching a rail-road.8 The basis, however, upon which the guest is barred from re-covery is that he did not exercise a reasonable degree of care for hisown safety.9 Following this rule, the guest cannot rely blindly uponthe alertness of the driver, but must, under the circumstances, exercisea reasonable degree of care for his own safety.If the guest because of age, inability to operate an automobile, orfor other reasons, is unfamiliar with dangers of automobile travel, hehas no duty to give warning of dangers.1° This type of guest wouldnot recognize dangers apparent to others, and, under the circumstances,would be exercising the required degree of caution for his own safety.Does the paying passenger have the same degree of duty as thegratuitous guest?-: A bus passenger 12 and taxi occupant'8 have beenheld to have no duty to keep a lookout. The "share-the-ride" passenger,paying for his transportation, can rely more on the driver than thegratuitous guest. 14 It would seem that in consideration of the fare,the passenger is relieved from maintaining a lookout. The guest's ownnegligence may, however, preclude a recovery although he has paid forthe ride.' 5The guest statutes are not phrased to cover the duty of the guestto the host or himself, but only the duty of the driver to his gratuitousguest.'0  The guest's duty is in need of clarification. One of the dan-gers recognized by the courts is that by requiring too active a part fromthe guest in the operation of the automobile, back-seat driving will be'Davis v. Joseph, 164 So. 467 (La. App. 1935) ; Banks v. Adams, 135 Me. 270,195 Ati. 206 (1937) ; Fabiano v. Carey, 279 Mich. 269, 271 N. W. 754 (1937).' Cardozo, A Ministry of Ju(stice, 35 HARv. L. REv. 113, 121 (1921).' Smith v. Atlantic & Y. Ry., 200 N. C. 177, 156 S. E. 508 (1931).'0 Kelly v. Hanwick, 288 Ala. 336, 153 So. 269 (1934) ; Banks v. Adams, 135Me. 270, 195 Atl. 206 (1937) ; Noakes v. New York C. & H. Ry., 121 App. Div.716, 106 N. Y. Supp. 322 (1907), aff'd, 195 N. Y. 543, 88 N. E. 1126 (1909)." Silver v. Silver, 280 U. S. 117 (1929).12 Miller v. Blue Ridge Transp. Co., 123 W. Va. 428, 15 S. E. 2d 400 (1941)."3 Yellow Cab Co. v. Eden, 178 Va. 325, 16 S. E. 2d 625 (1941); Scales v.Boynton Cab Co., 198 Wis. 293, 223 N. W. 836 (1929).1 Dennis v. Wood, 357 Mo. 886, 211 S. W. 2d 470 (1948).1 5 HUDDY, THE LAW OF AUTOmOBILEs 196 (1927) ; 1 LAW OF AUTOMOBILES INNORTH CAROLINA §55 (3rd Michie ed. 1947).1 MALCOLmu, AUTOmOBrLE GUEST LAW 1 (1937). North Carolina does not haveguest statute. See Note 9 N. C. L. REv. 47 (1930) (proposed guest statute).[Vol. 28NOTES AND COMMENTSencouraged.17 It is negligence to interfere with the driver in some situ-ations, but in others, non-interference will bar the guest from recovery.Any rigid rule to apply to all situations is undesirable. The probableNorth Carolina rule is that when danger arising out of the operation ofa vehicle by another is manifest to a passenger or guest who has ade-quate opportunity to control the situation by warning the driver, andhe sits without protest and permits himself to be driven to his injury,his negligence will bar a recovery-such negligence is not the negligenceof the driver imputed to him as a passenger, but his own negligence injoining with the driver and facing manifest danger.' 8 The courts should,however, consider each situation upon its facts, and apply the usualnegligence rule of the conduct of the reasonable man under the circum-stances. The adoption of a statute to cover this situation in inadvisablebecause a statute cannot be phrased to cover all the variations that aresure to arise. The rule that a guest must exercise reasonable care underthe circumstances should be applied in all cases, regardless of the guest'sposition in the automobile or his familiarity with automobile travel.Further, unless negligence or the lack of it is clear, the issue of negli-gence should be submitted to the jury. Constant application of this rulemight lead to clarification of an automobile guest's duty to keep a look-out.HUNTFR D. HEGGIE.Chattel Motgages-Recordation-Persons ProtectedAt common law a chattel mortgage was valid as between the partiesthereto without change of possession ;1 but, in order to be upheld againstthe attack of interested third persons, a transfer of possession to themortgagee was essential.2  The early registration acts,3 designed pri-17 Hedges v. Mitchell, 69 Colo. 285, 194 Pac. 620 (1920) ; Bradley v. InterurbanRy., 191 Iowa 1351, 183 N. W. 493 (1921); Chambers v. Hawkins, 223 Ky. 211,25 S. W. 2d 363 (1930) ; Young v. White Sulphur Ry., 96 W. Va. 534, 123 S. E.433 (1924).1 1 LAW OF AUTOMOBILES IN NORTH CAROLINA §35 (3rd Michie ed. 1947).'Williams v. Jones, 95 N. C. 504 (1886); McCoy v. Lassiter, 95 N. C. 88(1886); Leggett v. Bullock, 44 N. C. 283 (1853); Pike v. Armstead, 16 N. C.110 (1827).McCoy v. Lassiter, 95 N. C. 88 (1886); see Cowan v. Dale, 189 N. C. 684,128 S. E. 155 (1925); 1 JoNEs, CHATTEL MORTAGES AND CONDIOTIONL SALES §176(Rev. ed. 1933) ; cases cited 10 Am. Jur, CHATTEL MORTGAGES, §157.'N. C. Act of 1715, c. 38 §11: ". . . , That every mortgage of . . .goods orchattels, which shall be first registered in the register's office . . . where themortgager (sic) liveth, shall be taken, deemed, judged, allowed of and held to bethe first mortgage, and be good, firm, substantial and lawful; in all courts of Jus-tice within this government; any former or other mortgage of the same ....goods or chattels, not before registered, notwithstanding; unless such prior mort-gage be registered within fifty days after the date." N. C. Act of 1820, c. 3 §1:"That no mortgage, nor deed or conveyance in trust for any estate, whether realor personal . .. , shall be good and available in law against creditors or pur-chasers for a valuable consideration, unless the same shall have been proven and1950]

Automobiles -- Guest\u27s Duty -- Contributory Negligence as a Matter of Law

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Automobiles -- Guest\u27s Duty -- Contributory Negligence as a Matter of Law

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