Leonard v. Tatum & Dalton Transfer Co.

• Decision Date: 20 December 1940
• Docket Number: 666.
• Citation: 12 S.E.2d 729,218 N.C. 667
• Parties: LEONARD v. TATUM & DALTON TRANSFER CO. et al.
• Court: North Carolina Supreme Court

12 S.E.2d 729

218 N.C. 667

LEONARD v. TATUM & DALTON TRANSFER CO. et al.

No. 666.

Supreme Court of North Carolina

December 20, 1940

This is an action to recover damages for an injury to plaintiff alleged to have been sustained through the negligence of an employee of the defendant in the operation of a motor vehicle.

Since the appellant relies here mainly upon the refusal of the court below to grant its motion for judgment as of nonsuit the evidence may be summarized from that point of view:

The appellant, Tatum & Dalton Transfer Company, a corporation, was the owner of tractors, trucks, and trailers and was engaged in the transfer business in Greensboro and vicinity. The Bryant Electric Company, holding a contract with the R. E. A., entered into an agreement with the Tatum & Dalton Company under which the latter company furnished the former with a truck and driver at the price of $1.25 per hour.

In furtherance of this arrangement, Mr. Dalton, of the appellant company, hired Jones, subsequently charged with negligent operation of the truck, as driver. The truck was "picked up" at High Point, and, with Jones in charge, put into the agreed service in Davidson County, hauling poles in connection with the construction of an electric line.

Evidence as to the agreement between appellant and the Electric Company appears in the record as follows:

"H M. Bryant testified for plaintiff: I am president of the Bryant Electric Company. My Company has a contract with the R. E. A. in this county for placing poles. Pursuant to our contract it was necessary for us to transport poles from different locations over the highways to the places where those poles were to be placed. Pursuant to our contract with the R. E. A., it was necessary for us to transport poles from different places in the county to the places where the poles were to be placed as directed. The poles are different sizes different lengths, and different sizes in timber. They run from 25 feet to 50 feet, to the best of my knowledge. They are different classes of poles. I will say their color was black or brown."

"Well I called Mr. Dalton and talked to him over the phone and told him that we had some poles to haul, and asked if he would furnish us a truck and man to haul these poles. He told me that he would, and the question came up about the price. I said, 'I will pay the same price I have been paying', which was $1.25 an hour, 'and furnish the gas and the men ***' the Bryant Electric Company to furnish the gas and Dalton was to furnish driver. That was from over here at this office, and he came over but I left the office, and turned my information over to Mr. Burgess, my superintendent; and that is what I paid Mr. Dalton is $1.25 an hour for the time he was hauling the poles." "Well, I hired the truck to haul poles, but I was not over here, and all I can say is what my superintendent did about that. He was to direct how the hauling was to be done. I don't know that because that Mr. Burgess directed."

"We were to furnish necessary help to load the poles is what I told him. I didn't know how many men it would take and that was left entirely,--I stated we were to furnish assistance to help load and unload the poles."

"We had this contract and part of our contract was to the effect that poles had to be delivered to certain places. We hired this truck and driver to haul those poles. Part of our agreement was to furnish gasoline. We furnished the gasoline. Yes, we furnished the necessary help to load the poles. I did not put this truck and driver under our superintendent. His name was Mr. Burgess. Yes, there was a Mr. Allen on the pay roll. I don't remember what he did. I know that I paid Mr. Dalton in accordance with our terms because he came by the office. It was $1.25 per hour. We didn't have this truck hauling transformers to my knowledge. We didn't have it hauling wire to my knowledge. All that was in charge of our superintendent. So far as I know, the truck and driver did what our superintendent told him to do. I just turned it over to the superintendent, and so far as I know, the Superintendent did what I said. The truck we got from Tatum & Dalton was to report at Lexington. At this time we had this R. E. A. contract."

"I did not know of my own knowledge in reference to this truck and driver as to what any of our superintendents or foremen did."

"There were maps in the office to indicate where the driver of this truck might take the poles."

The evidence as to the circumstances of plaintiff's injury is somewhat conflicting, but plaintiff's evidence tends to show that on August 30, 1939, Jones drove the Tatum & Dalton truck to Silver Valley to get poles. Accompanying the truck were Foster Anderson, Robinson, and Curtis, employees of the Electric Company, who were there to load the poles under Jones' direction. The headlights were put on at Willomore Springs, some ten miles from where the accident took place.

While Jones testified that the truck never ceased moving until struck in the rear by plaintiff's car, other testimony was to the effect that it went dead. That there were neither lights nor lighting fixtures on the rear of the truck; no flags on the ends of the poles which projected some 16 feet over the end of the truck, and were black, like the road.

One witness said Jones gave him a paper flour sack and told him to go back and flag,--that there were no reflectors on the rear of the truck. This witness, however, stated that he was trying to crank the truck when Mr. Leonard struck it. As to the truck, "It stopped right on just about the center of the highway". "The sacks would not last any more than three or four minutes, that torch he had lit. In about five minutes after that then the car hit the poles. There were no lights of any kind to the rear of that truck within five minutes to the time Mr. Leonard struck it." "The color of the road was black, the color of the poles was black *** two and a half or two feet, off of the ground".

Sheriff Kimel testified that the road was straight for some distance, but that there was a dip down into where the car struck the truck. He also testified that there were no reflectors on the back of the truck and that there was not even a light assembly or fixture. A fixture had been broken off and the place was rusty.

The plaintiff, Leonard, testified that he met a car just before he ran into the truck and had put on his dimmers,--that he did not see the poles, close to the ground, nor the truck at all, until he ran into it.

There was much evidence in partial contradiction. Evidence on the part of defendant, Tatum & Dalton Transfer Company, was to the effect that the truck was properly inspected and thoroughly equipped with lights before it was sent on the job.

There was evidence as to plaintiff's injuries.

Upon the submission of appropriate issues the jury found that Jones was not the employee of the Bryant Electric Company but that he was the employee of the Tatum & Dalton Transfer Company, and, answering the issues of negligence and contributory negligence in favor of plaintiff, assessed the damages at $3,000. From the...