Cotton v. Carolina Truck Transp. Co
| Decision Date | 20 November 1929 |
| Docket Number | (No. 168.) |
| Court | North Carolina Supreme Court |
| Parties | COTTON . v. CAROLINA TRUCK TRANSP. CO. et al. |
[Ed. Note.—For other definitions, see Words and Phrases, First, Second, and Third Series, Scope of Employment.]
Appeal from Superior Court, Craven County: Daniels, Judge.
Action by Stacy Adams Cotton, by Cornelius C. Cotton, his father and next friend, against the Carolina Truck Transportation Company and another. Judgment for plaintiff, and defendant named appeals. Reversed and rendered.
Civil action to recover damages for an alleged negligent injury sustained by plaintiff when he fell or was thrown from a truck.
The evidence for the plaintiff tends to show that on October 23, 1926, George Foy, who prior and subsequent to that time worked for the corporate defendant as a truck driver, was operating a truck in the city of New Bern, through a section principally inhabited by the colored race. The truck in question was a Mack truck, such as the corporate defendant uses, with the name "Carolina Truck Transportation Company" appearing on the side. One witness testified that it had the words "Carolina Instruction Company" painted on the side of the cab. On seeing the plaintiff, a colored boy eleven years of age, and his companion, James Wilson, the driver stopped and picked them up for a ride. Wilson got on the inside of the truck, and the plaintiff stood on the outside, on the running board, next to the driver's seat.
It is further in evidence that George Foy had allowed the plaintiff to ride with him seven or eight times before, in the same neighborhood, and on the same truck which he was driving that day. As the truck turned the corner of Biddle and Rose streets, two unimproved streets, narrow and sandy, at a rapid rate of speed, the plaintiff's foot slipped, and, not being able to hold on with his hands, or regain his footing, because of the speed of the truck, he fell to the ground, and was run over by the rear wheel of the truck, sustaining serious and permanent injuries. The plaintiff testified:
The evidence for the corporate defendant tends to show that it is engaged in freight transportation by automobile trucks between certain towns, and that none of its trucks or drivers has any business for the defendant in that section of the city where the plaintiff was injured; that George Foy worked for the Carolina Truck Transportation Company, both before and after the accident, but that for several days before, and several days after, the plaintiff was injured, the said Foy was not in the employ of the Carolina Truck Transportation Company, and that none of its trucks was in the vicinity of the accident at the time it occurred.
George Foy testified that he was not in the employ of the Carolina Truck Transportation Company at the time of the plaintiffs injury, and that the truck he was driving belonged to a man in Goldsboro who was looking for cotton hands; that he was accompanying his driver in that section of the city where he thought such hands might be found; and that the Carolina Truck Transportation Company had nothing whatever to do with the truck which injured the plaintiff or with its driver.
The usual issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of the plaintiff. From the judgment rendered thereon, the defendant appeals, assigning errors.
Moore & Dunn, of New Bern, for appellant.
Ernest M. Green and R. O'Hara, both of New Bern, for appellee.
STACY, C. J. (after stating this case).
It is questionable as to whether the evidence is sufficient to show that the truck which injured the plaintiff belonged to the defendant Carolina Truck Transportation Company, and that the driver of the truck was about the business of said defendant at the time of the injury; but, however, this may be, and conceding for the moment that such inferences are permissible, still we think the plaintiff has failed to make out a case of liability against the corporate defendant, in that no evidence has been offered to show that the driver was acting within the scope of his employment in taking the boys on the truck for a ride. Dover v. Mfg. Co., 157 N. C. 324, 72 S. E. 1067, 46 L. R. A. (N. S.) 199. If the defendant Foy had invited the plaintiff to ride with him on other occasions, there is no evidence that the corporate defendant knew it. In this respect, Fry v. Utilities Co., 183 N. C. 281, 111 S. E....
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