Cole v. Asheville Funeral Home

• Decision Date: 31 October 1934
• Docket Number: 120.
• Citation: 176 S.E. 553,207 N.C. 271
• Parties: COLE v. ASHEVILLE FUNERAL HOME.
• Court: North Carolina Supreme Court

176 S.E. 553

207 N.C. 271

COLE v. ASHEVILLE FUNERAL HOME.

No. 120.

Supreme Court of North Carolina

October 31, 1934

Appeal from Superior Court, Buncombe County; Schenck, Judge.

Action by Richard Cole against the Asheville Funeral Home. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

On August 7, 1930, plaintiff was working on a public street in the city of Asheville, greasing a street car track. A street car approached and he stepped off the track in order that the street car might pass. Thereupon an automobile, driven by L H. Wilkins, turned into the street upon which plaintiff was standing and negligently ran him down, inflicting serious injuries. Plaintiff said: "When I was knocked down and dragged the car stopped after it got toward McDowell Street after he drug me here from the switch. I know the man that was driving, L. H. Wilkins. He was working for the Asheville Funeral Home."

The daughter of plaintiff testified without objection: "I know a man by the name of L. H. Wilkins. * * * I saw him on the date that this happened. He worked for the Asheville Funeral Home. He drove for the Asheville Funeral Home and worked for them."

The plaintiff attempted to offer evidence of certain declarations of Wilkins, tending to show that he was, at the time of the injury, engaged in executing a mission for the defendant. Wilkins did not take the stand at the trial and testify under oath. Hence the trial judge properly excluded such declaration.

At the conclusion of the evidence, there was judgment of nonsuit and the plaintiff appealed.

Pedestrian held not entitled to recover for injuries sustained when run down by automobile where all that evidence showed was that driver was employee of defendant and was driving some kind of car during business hours, and that while so driving he negligently struck pedestrian, but there was no evidence that automobile was business vehicle or that defendant owned automobile so driven, or that driver was engaged in business of his employer.

Edward H. McMahan, of Morganton, and D'Arcy S. Williams, of Asheville, for appellant.

Welch Galloway, of Brevard, for appellee.

BROGDEN Justice.

There was competent evidence that Wilkins, an employee of defendant, was driving some kind of car during business hours. There was competent evidence that, while so driving he negligently struck and injured the plaintiff.

Upon such showing, has the plaintiff made out a prima facie case? The law answers the question in the negative.

The...