Freeman v. Dalton
| Decision Date | 17 May 1922 |
| Docket Number | 362. |
| Parties | FREEMAN v. DALTON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; Harding, Judge.
Action in the county court by J. R. Freeman against J. A. Dalton. From a judgment for plaintiff, affirmed by the superior court, defendant appeals. New trial granted.
In an action for injuries, caused by an automobile running into plaintiff, the fact that defendant's license number was on the automobile was some evidence of his ownership of the car.
This action was brought to recover damages for injuries, alleged by the plaintiff to have been caused by the negligence of the defendant, and tried in the Forsyth county court at the May term, 1921. From the judgment of the latter court, appeal was taken to Forsyth superior court, which affirmed the said judgment.
The specific allegations of the plaintiff were that, in September, 1920, the plaintiff was the owner of a motorcycle and the defendant, Dalton, was at that time the owner of a 7-passenger Studebaker touring car, which was being driven by one Boyd Samuels, the agent of said defendant. The plaintiff was riding his motorcycle through Waughtown, a suburb of Winston-Salem, N. C., coming towards Winston-Salem, and running along his right-hand side of the road at the rate of about three miles an hour, and the automobile of Dalton was going in the opposite direction at the rate of about 30 miles an hour, being driven by one Samuels, who was at that time the agent of the defendant, Dalton, and using the automobile in the business of Dalton. The automobile of the defendant was being driven along the wrong side of the road, at the rate of about 30 miles an hour, and recklessly run into the motorcycle of the said plaintiff, throwing the plaintiff to the ground and injuring him and practically demolishing his motorcycle.
The defendant denied these allegations and alleged that the automobile was not owned by him, but by his wife, and was, at the time of the injury, being used by the Interurban Motor Line, of which the defendant, J. A. Dalton, was manager, the automobile having been loaned temporarily by Mrs. Dalton to the motor line, for the purpose of carrying some passengers to Winston-Salem; that, on the driver's return, and as he was passing through Waughtown, a suburb of Winston-Salem, running along the right-hand side of the road at a moderate rate of speed and while he was in the act of passing some trucks which were parked on his right-hand side, the plaintiff, J. R. Freeman suddenly and without any warning to the defendant, rode out from between two of these trucks into the street and directly in front of the automobile driven by Boyd Samuels; that observing the dangerous condition created by the plaintiff, Samuels applied his brakes and cut the automobile to the left in an effort to avoid the collision, but that, in spite of his efforts, there was a collision from which plaintiff received personal injuries and from which damage resulted to the motorcycle.
The court charged the jury as follows:
The defendant duly excepted to the charge as above set forth and to each part of it.
There was evidence on the question of negligence by the defendant, the two acts of negligence alleged being that Samuels, the chauffeur, was driving in excess of 25 miles an hour, and that he drove to the left instead of to the right of the open space in the road.
The jury rendered a verdict in favor of the plaintiff; judgment for him, and defendant appealed to the superior court, which affirmed the judgment of the county court, and defendant then appealed to this court.
H. M. Ratcliff and Holton & Holton, all of Winston-Salem, for appellant.
W. T. Wilson and Wallace & Cohen, all of Winston-Salem, for appellee.
WALKER, J. (after stating the facts as above).
The first question is, whether the learned judge was correct in charging the jury that, if they found by the greater weight of the evidence that the defendant was the owner of the automobile which collided with the plaintiff's motorcycle, this fact would raise a presumption that the automobile was being used in the defendant's business, and in that event the burden would be on Dalton to show, by the greater weight of the evidence, that, although he was the owner of the automobile, it was not being used in his business. This instruction placed the burden on the defendant not only to prove, if he was the owner of it, that the automobile was not used in his business, but to establish it by preponderance or the greater weight of the evidence, whereas the burden of the issue was upon the plaintiff throughout the case, not only to show that the defendant was the owner of the automobile, but that it was, at the time, being used in his business.
The defendant had not pleaded any...
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McLamb v. Beasley
...was evidence from which the jury might infer that it was being used in defendant's business at the time of the injury. Freeman v. Dalton, 183 N.C. 538, 111 S.E. 863. West v. Baking Co., 208 N.C. 526, 181 S.E. 551, it appeared that the truck was being driven by defendant's employee. This cou......
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Carter v. Thurston Motor Lines
...in which this has occurred are these: Linville v. Nissen, supra; Reich v. Cone, 180 N.C. 267, 104 S.E. 530; Bilyeu v. Beck, supra; Freeman v. Dalton, supra; Grier v. Grier, supra; Martin Greensboro-Fayetteville Bus Line, supra; Cotton v. Carolina Truck Transportation Co., supra; Weatherman ......
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Martin v. Greensboro-Fayetteville Bus Line
...truck was acting within the scope of his authority and in furtherance of his employer's business," citing in support of the position Freeman v. Dalton, supra, and Clark Sweaney, 176 N.C. 529, 97 S.E. 474. In the second, the only question presented and decided was that the trial court erred ......
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Cotton v. Carolina Truck Transp. Co.
... ... scope of his authority and in furtherance of his ... employer's business," citing, as authority for the ... position, Freeman v. Dalton, 183 N.C. 538, 111 S.E ... 863, and Clark v. Sweaney, 176 N.C. 529, 97 S.E ... 474. In the second, the whole question was whether the ... ...