Barrier v. Thomas & Howard Co

• Decision Date: 22 November 1933
• Docket Number: No. 328.,328.
• Citation: 171 S.E. 626,205 N.C. 425
• Court: North Carolina Supreme Court
• Parties: BARRIER. v. THOMAS & HOWARD CO.

171 S.E. 626

205 N.C. 425

BARRIER.

v.THOMAS & HOWARD CO.

No. 328.

Supreme Court of North Carolina.

Nov. 22, 1933.

Appeal from Superior Court, Cabarrus County; Hill, Special Judge.

Action by Ben Barrier against Thomas & Howard Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

This is an action to recover of the defendant damages for personal injuries suffered by the plaintiff, when the automobile in which he was riding as the guest of its owner and driver, collided with a truck which is owned by the defendant and was parked on a highway in this state, in the nighttime, without a light on its rear, by its driver, who was the servant and employee of the defendant when he parked the said truck.

The issues submitted to the jury were answered as follows:

"1. Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? Answer, Yes.

"2. What damages, if any, is the plaintiff entitled to recover of the defendant? Answer, $3,500.00.".

Prom judgment that plaintiff recover of the defendant the sum of $3,500, and the costs of the action, the defendant appealed to the Supreme Court.

Armfield, Sherrin & Barnhardt, of Concord, for appellant.

Hartsell & Hartsell, of Concord, for appellee.

CONNOR, Justice.

The only question presented by this appeal is whether there was error in the refusal of the trial court to allow defendants' motion for judgment as of nonsuit at the close of all the evidence. C. S. § 567. The defendant contends: (1) That conceding that the evidence offered by the plaintiff tended to show that its truck was parked on the highway, in the nighttime, without a light on its rear, in violation of Code 1931, §§ 2621 (77) and 2621(94), as alleged by the plaintiff, all the evidence showed that such negligence on the part of the driver of the truck was not the proximate cause of plaintiff's injuries, but that the sole proximate cause of said injuries was the negligence of the driver of the automobile in which plaintiff was riding at the time of the collision; and, (2) that conceding that the evidence offered by the plaintiff tended to show that the driver of the truck was negligent, and that his negligence was a proximate cause of plaintiff's injuries, as alleged by the plaintiff, all the evidence showed that the driver of the truck was not the servant or employee of the defendant, but that he was the servant or employee of another, at the time he parked the truck on the highway.

Neither of these contentions can be sustained. Conceding without deciding that the driver of the automobile in which plaintiff was riding as a guest was negligent in the operation of his automobile, as contended by the defendant, the evidence as to whether such negligence was the sole proximate cause of plaintiff's injuries was at least conflicting. For this reason, the evidence...