Smith v. Miller

• Decision Date: 22 January 1936
• Docket Number: 753.
• Citation: 183 S.E. 370,209 N.C. 170
• Parties: SMITH v. MILLER et al.
• Court: North Carolina Supreme Court

183 S.E. 370

209 N.C. 170

SMITH v. MILLER et al.

No. 753.

Supreme Court of North Carolina

January 22, 1936

Appeal from Superior Court, Forsyth County; Rousseau, Judge.

Action by Thelma Smith by her next friend, W. A. Smith, against Paul Miller and another. From a judgment of the superior court affirming a judgment of the county court for plaintiff defendants appeal.

Affirmed.

In action against owner for injuries sustained by girl when struck by automobile driven by his employee, testimony that driver stated immediately after accident that he was, at that time, going after owner's newspaper held admissible to show that driver was acting within scope of employment.

This is an action to recover damages for personal injuries suffered by the plaintiff, a child six years of age, when she was struck and knocked down by an automobile owned by the defendant Jerry Swaim, and driven on a state highway in Forsyth county, N. C., by the defendant Paul Miller.

It is alleged in the complaint that the plaintiff was injured by the negligence of the defendant Paul Miller while he was driving an automobile owned by the defendant Jerry Swaim that at the time he struck and injured the plaintiff, the defendant Paul Miller was an employee of the defendant Jerry Swaim; and that the said Paul Miller was driving the automobile owned by the defendant Jerry Swaim when he struck and injured the plaintiff, in the performance of the duties of his employment.

In their answer, the defendants deny that the plaintiff was injured by the negligence of the defendant Paul Miller, as alleged in the complaint; they admit that at the time the plaintiff was struck and injured by the automobile, the defendant Paul Miller was an employee of the defendant Jerry Swaim; they deny, however, that the defendant Paul Miler was engaged in the performance of any duty as an employee of the defendant Jerry Swaim when the automobile which he was driving struck and injured the plaintiff.

The action was begun and tried in the Forsyth county court. At the trial issues submitted to the jury were answered as follows:

"1. Was the defendant Paul Miller the agent of his codefendant Jerry Swaim and acting within the scope of and in the execution of his authority at the time of the injury to the plaintiff, as alleged in the complaint? Answer, Yes.

2. Was the plaintiff, Thelma Smith, injured by the negligence of the defendants, as alleged in the complaint? Answer, Yes.

3. What amount of damages, if any, is the plaintiff entitled to recover of the defendants? Answer, $2,500.00."

From judgment that plaintiff recover of the defendants the sum of $2,500, and the costs of the action, the defendants appealed to the superior court of Forsyth county, assigning errors in the trial.

At the hearing of defendants' appeal to the superior court, each and all their assignments of error on said appeal were overruled, and the judgment was affirmed. The defendants appealed to the Supreme Court, assigning errors in the rulings of the judge of the superior court on their assignments of error in said court, as shown by the record.

Slawter & Wall, of Winston-Salem, for appellants.

Elledge & Wells, of Winston-Salem, for appellee.

CONNOR Justice.

Where as in the instant case there is evidence tending to show (1) that the defendant in an action to recover damages for personal injuries suffered by the plaintiff was driving an automobile on a highway in this state at a speed of from forty to forty-five miles per hour; (2) that while thus driving the automobile, the defendant approached a group of children, standing near the highway, some on one side, and others on the other side of the highway, and thus awaiting the arrival of a school bus which was approaching the children from the direction in which the defendant was driving, for the purpose of transporting the children to a public school which they were attending as pupils; and (3) that the defendant saw or in the exercise of reasonable care could have seen the children in this situation, but did not slacken his speed and give warning of his approach by sounding his horn or otherwise, such evidence is sufficient as a matter of law to sustain the allegation in the complaint that the defendant was driving the automobile in violation of the provisions of Code 1935, § 2621(45), and was for that reason negligent. See Towe v. R. R., 165 N.C. 1, 80 S.E. 889; Moore v. Powell, 205 N.C. 636, 172 S.E 327; Fox v. Barlow, 206 N.C. 66, 173...