Barrow v. Keel

• Decision Date: 13 April 1938
• Docket Number: 313.
• Citation: 196 S.E. 366,213 N.C. 373
• Parties: BARROW v. KEEL et al.
• Court: North Carolina Supreme Court

196 S.E. 366

213 N.C. 373

BARROW v. KEEL et al.

No. 313.

Supreme Court of North Carolina

April 13, 1938

Appeal from Superior Court, Craven County; Henry A. Grady, Judge.

Action by Louis Barrow, by his next friend, Jesse Barrow, Jr. against Rufus Keel and another for personal injury occurring when plaintiff was struck by an automobile after alighting from a school bus. Judgment of nonsuit entered by the court at the close of the evidence, and plaintiff appeals.

Reversed.

Upon motion for nonsuit, evidence must be viewed in the most favorable light for plaintiff, and, if there is any competent evidence tending to prove facts in issue, case must be submitted to jury.

W. B R. Guion and D. L. Ward, both of New Bern, for appellant.

J. B James, of Greenville, for appellees.

DEVIN Justice.

The plaintiff instituted his action for damages for a personal injury alleged to have been proximately caused by the negligence of the defendants in the operation of an automobile upon the highway. At the close of the evidence the court below sustained motion for judgment of nonsuit, and plaintiff appealed.

It is the accepted rule that upon a motion for judgment of nonsuit the evidence for the plaintiff must be considered in its most favorable light, and if there be any competent evidence tending to prove the facts in issue the case must be submitted to the jury. State v. Adams, 213 N.C. 243, 195 S.E. 822; Anderson v. Amusement Co., 213 N.C. 130, 195 S.E. 386.

It was not controverted that there was evidence tending to show that the plaintiff, a child, immediately after alighting from a school bus on the highway, was struck and injured by an automobile negligently operated at the time, and that the driver of the automobile was one Hester Quinn, an employee of the defendants, but it was denied that the driver was at the time acting within the scope of his employment or engaged in work for or in furtherance of his employers' business, and defendants contend that in this respect plaintiff's evidence failed to support allegations of negligence on the part of these defendants.

The determinative question, therefore, presented by the appeal is whether there was any competent evidence to justify the application of the principle of respondeat superior so as to impose liability upon the defendants for the negligence of the driver of the automobile. Upon this point the plaintiff offered evidence tending to show that the defendants were engaged in the leaf tobacco warehouse business in Greenville N. C., and that Hester Quinn was regularly employed by them to do work in and about the warehouse, particularly in facilitating the unloading of tobacco and keeping the time of the laborers on the floor, and that he was so employed before and after the date of plaintiff's injury, which occurred October 16, 1936. It also appeared that Quinn lived near Newport, N. C., some 70 miles distant from Greenville. A witness for plaintiff testified that on the day of plaintiff's injury "Mr. Keel told him (Quinn), and Mr. Taylor, too, to go down and get all the tobacco he could get around Newport, drum the tobacco up to Greenville for sale. I remember the date during the fall of 1936 that my nephew (the plaintiff) was injured in an accident. He (Quinn) was at the warehouse at Keel's and Taylor's. It was on Friday afternoon and I was working in the warehouse and a sale was going on, and I needed some help over on my side of the house where I was working to get someone to help me repack rejected...