Wardrick v. Davis , 15 N.C. App. 261 ( 1972 )

BROCK, Judge.

The only assignment of error that plaintiff brings forward on this appeal is that the trial judge erred in granting defendants’ motion for a directed verdict at the close of plaintiff’s evidence. The decision of the trial judge was based on the reason that plaintiff’s evidence tended to show that he was guilty of contributory negligence as a matter of law. We agree.

The thrust of plaintiff’s argument is that his evidence was sufficient to establish a case for the jury and that his evidence fails to show that he was contributorily negligent as a matter of law. In fact, plaintiff relies upon Jackson v. Jackson, 4 N.C. App. 153, 166 S.E. 2d 541, and the cases cited therein. However, we find Jackson and the other cases plaintiff cites distinguishable in that in each case there were conflicting inferences which might be drawn from the circumstances and there were discrepancies and contradictions in the evidence for jury determination.

In the present case, plaintiff in his complaint alleged that defendant (Earl Davis) operated his vehicle upon the public roads of North Carolina while under the influence of intoxicating beverages in violation of G.S. 20-138, which was unknown to plaintiff. However, the evidence offered by plaintiff and his witnesses, even in the light most favorable to plaintiff, tends to show that both plaintiff and defendant, Earl Davis, had consumed a quantity of beer and a quantity of wine. Obviously, the defendant and plaintiff had been drinking and the plaintiff had knowledge of defendant’s condition resulting from the spirits. In fact, the only clear inference from plaintiff’s evidence was that the defendant Earl Davis was under the influence or intoxicated and no other reasonable conclusion could be drawn therefrom. The inference of defendant’s being under the influence is unequivocal and is not diminished by plaintiff’s pleading that this fact was unknown to him. The plaintiff’s own statement that he was feeling the effect of the alcoholic beverage refutes any theory that he did not have knowledge of defendant being under the influence when both of them “drank about the same amount.”

The language of Justice Sharp in Davis v. Rigsby, 261 N.C. 684, 136 S.E. 2d 33, which follows, is controlling:

“It is negligence per se for one to operate an automobile while under the influence of an intoxicant within the meaning of G.S. 20-138. [citation omitted]. If one enters an automobile with knowledge that the driver is under the influence of an intoxicant and voluntarily rides with him, he is guilty of contributory negligence per se, [citation omitted].”

In the case now before us, the plaintiff’s evidence tends to show that he had knowledge that defendant had been drinking beer and wine during the afternoon in his presence and that he entered the car and rode with the defendant, whom plaintiff must have known to be under the influence of intoxicants, although he may not have thought him to be drunk. “He [plaintiff] cannot avoid the consequences of his lack of prudence by saying that the defendant was not drunk. The two terms are not necessarily synonymous.” Davis v. Rigsby, supra.

Therefore, the plaintiff’s evidence is not conflicting and it clearly tends to show that he was contributorily negligent as a matter of law. The directed verdict for defendant was proper and the order is

Affirmed.

Judges Morris and Hedrick concur.