On discretionary review to review the decision of the North Carolina Court of Appeals reported in
Branch, Chief Justice. Justice Carlton did not participate in the consideration or decision of this case.
The question presented by this appeal is whether the Court of Appeals erred in reversing the trial court's ruling granting defendant's motion for a directed verdict.
Defendant contends that the Court of Appeals erred in holding that ordinary contributory negligence on the part of plaintiff does not bar recovery as against defendant's willful or wanton conduct. He argues that this rule should not be applied in cases of prearranged racing in which a passenger has acquiesced by failing to take steps for his own protection, or alternatively, that plaintiff's
acquiescence should amount to willful or wanton conduct as a matter of law and thus bar recovery. We disagree.
This Court considered the law of contributory negligence as a defense to the defendant's willful or wanton conduct in Pearce v. Barham, 271 N.C. 285, 156 S.E.2d 290 (1967). There, Justice Bobbitt (later Chief Justice) speaking for the Court stated:
"Ordinarily, where willful or wanton conduct for which defendant is responsible is a proximate cause of the injuries complained of, contributory negligence does not bar recovery." [Citations omitted.] In [ Brendle v. R.R., 125 N.C. 474, 34 S.E. 634 (1899)], Douglas J., for the Court states: "It is well settled that contributory negligence, even if admitted by the plaintiff, is no defense to willful or wanton injury."
"While there is some authority to the contrary, it has been held that no recovery can be had for an injury willfully and wantonly inflicted, where willful or wanton conduct for which plaintiff is responsible contributed as a proximate cause thereof." [Citations omitted.] . . .
The error in the quoted instruction relating to the contributory negligence issue is that the court instructed the jury the mere failure of plaintiff to protest and remonstrate and ask the driver to stop and let her get out of the car would be such contributory negligence as would bar recovery. Such conduct on the part of plaintiff would be no more than ordinary negligence and would not be a bar to recovery if plaintiff were injured as a result of Calvin's wilful or wanton conduct.
Id. at 289-90, 156 S.E.2d at 294.
Pearce stands for the proposition that ordinary negligence on the part of a plaintiff will not defeat his recovery from a defendant whose willful or wanton negligence proximately caused plaintiff's injury. Furthermore, it is the majority rule, and we think the better reasoned rule, that plaintiff's willful or wanton negligence is a defense in an action seeking recovery for injuries caused by defendant's willful or wanton conduct. Hinkle v. Minneapolis, Anoka & Cuyuna Range Railway, 162 Minn. 112, 202 N.W. 340 (1925); see also Annot., 41 A.L.R. 1379 (1926) and cases cited therein.
In cases where defendant is guilty of simple negligence, this Court has held that under certain circumstances it becomes the duty of the gratuitous passenger in the exercise of due care for his own safety to protest, remonstrate the driver and, if his warning is disregarded, to request that the automobile be stopped and he be permitted to leave the car. Samuels v. Bowers, 232 N.C. 149, 59 S.E.2d 787 (1950), petition for rehearing dismissed, 232 N.C. 522, 61 S.E.2d 448 (1950); Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162 (1942); 5 Blashfield Automobile Law and Practice § 215.20 (3d ed. 1966). However, in such cases whether the guest passenger should remonstrate, protest or even leave the automobile is ordinarily a question for the jury to be decided according to the particular circumstances of each case and upon the standard of what an ordinarily prudent person in the exercise of due care ...