Jeffrey v. Osage Mfg. Co.
| Decision Date | 20 November 1929 |
| Docket Number | 469. |
| Citation | 150 S.E. 503,197 N.C. 724 |
| Parties | JEFFREY v. OSAGE MFG. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Gaston County; Stack, Judge.
Action by William Jeffrey against the Osage Manufacturing Company. Judgment for plaintiff, and defendant appeals. No error.
Where plaintiff has made a prima facie case it is error to take the case from the jury.
The plaintiff was a resident of Cambridge, Mass., and had been spending some time in Florida. He left Florida and was returning to New York as a passenger and guest of John Warner, who lived in Watertown, Mass.
The evidence tended to show that plaintiff left Asheville about 8:30 on the morning of March 22, 1928. When the car reached a point on Highway No. 20 between Kings Mountain and Bessemer City, going east toward Gastonia, it collided with a truck owned by the defendant and operated at the time by a colored driver named William Shifty. There was sufficient evidence of negligence to be submitted to the jury. The defendant admitted the ownership of the truck; that the driver, Shifty was in its regular employment; and that said Shifty was the regular driver of said truck, and had been in the employment of the defendant for four or five years.
The evidence further tended to show that Shifty's mother lived some distance from the defendant's plant on the road between Gastonia and Bessemer City, and that on the day of the injury Shifty, in company with two other negro employees of the defendant, took the truck at the dinner hour to visit Shifty's mother, who was sick. The collision occurred at a point near the home of the driver's mother. The defendant offered evidence to the effect that the driver Shifty, had taken the truck at the dinner hour without the knowledge or consent of defendant, and contrary to the express orders and instructions given him by the officers of defendant to the effect that the driver should not use the truck for any purpose without orders from his superiors. This evidence came from several witnesses for the defendant, and was uncontradicted.
There was evidence that Shifty was the only person who ever drove the truck, and that on previous occasions he had driven the truck on the road between Gastonia and Bessemer City.
Issues of negligence and damages were submitted to the jury and answered in favor of plaintiff.
The verdict awarded damages in the sum of $7,200.50. From judgment upon the verdict the defendant appealed.
J Laurence Jones, of Charlotte, and S. J. Durham, of Gastonia, for appellant.
Ernest R. Warren and John G. Carpenter, both of Gastonia, and Ryburn & Hoey, of Shelby, for appellee.
What must a plaintiff prove in order to make out a prima facie case for personal injury inflicted by a truck?
Our decisions are to the effect that a prima facie showing takes the case to the jury, and it is therefore a question for the jury to determine whether or not the necessary facts have been established. This rule of law was tersely expressed in Speas v. Bank, 188 N.C. 524, 125 S.E. 398, 401, as follows:
Our decisions are also to the effect that a plaintiff, in order to recover for personal injury inflicted by an automobile or truck, must offer evidence tending to prove the following:
(1) That the truck or automobile inflicting the injury was at the time operated in a negligent manner, or that the driver thereof was guilty of negligence which was the proximate cause of the injury.
(2) Where the driver or operator of the conveyance at the time of the injury was other than the owner, the plaintiff must offer evidence tending to show the ownership of the vehicle, if such owner is sought to be charged with the negligence of the driver or operator.
(3) That, if the injury was caused by the negligence of an agent, evidence must be offered tending to establish the agency.
(4) That the agent or employee at the time of the injury was acting within the scope of his employment as contemplated and defined by law. Grier v. Grier, 192 N.C. 760, 135 S.E. 852; Misenheimer v. Hayman, 195 N.C. 613, 143 S.E. 1; Ferguson v. Spinning Co., 196 N.C. 614, 146 S.E. 597; Wilkie v. Stancil, 196 N.C. 794, 147 S.E. 296; Martin v. Bus Line, 197 N.C. 720, 150 S.E. 501; Cotton v. Transportation Co., 197 N.C. 709, 150 S.E. 505.
In the case at bar there was ample evidence of negligence, and the defendant admitted ownership of the truck, and further admitted that the driver was a regular employee, and had previously been the regular driver of the truck in the furtherance of the business of said defendant. However, the defendant offered strong evidence to the effect that at the time of the injury the driver was not engaged in its business, but had taken said truck, a substantial distance from the mill, at the dinner hour to visit his mother, and that this was done without the knowledge, consent, or approval of the defendant, and contrary to its express and repeated instructions. This evidence was not contradicted and upon such showing the defendant earnestly contends that the plaintiff ought not to recover, because there was no evidence tending to prove that the driver at the time of the injury was acting within the scope of his employment and in furtherance of the master's business. In other words, this phase of the case is reduced to a single proposition, to wit: "Must a plaintiff offer evidence that the driver of the truck was...
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