
    A. L. CAULDER v. KIVETT MOTOR SALES, INC., and R. A. PLUNKETT, and JULIA MARGARET CAULDER, by Her Next Friend, A. L. CAULDER, v. KIVETT MOTOR SALES, INC., and R. A. PLUNKETT.
    (Filed 5 June, 1942.)
    1. Automobiles §§ 7, 18a — Evidence of negligent operation of automobile held sufficient for jury.
    Evidence that tbe driver of a car was traversing a highway in a thickly settled residential section having intersecting streets and a sign requiring speed to be reduced to 30 miles an hour, that he was driving 60 miles per hour during the daytime and struck a five-year-old child who had been walking along the edge of the pavement, his speed having been reduced to 45 miles an hour at the time of the impact, and there being no other traffic on the highway affecting the accident, is held, sufficient to be submitted to the jury on the question of the negligent operation of the automobile.
    2. Evidence § 42d: Principal and Agent § 7—
    Testimony of a declaration of an automobile salesman that at the time of the accident he was driving the corporate defendant’s car to demonstrate it to a prospective purchaser, which declaration was not made at the time of the injury or near enough to the transaction to constitute a part of the res gestee is held incompetent and its admission constitutes prejudicial error.
    3. Appeal and Error § 40e—
    When, upon appeal from the refusal of defendants’ motion to nonsuit, a new trial is awarded for error in the admission of some of plaintiffs’ evidence, the sufficiency of the other evidence to repel the nonsuit need not be decided, since plaintiffs on another trial may offer, other evidence in support of their cause of action.
    Barnhill, J., dissenting.
    Appeal by defendants from Gwyn, J., at November Term, 1941, of ALAMANCE.
    Tbe two cases entitled as above were by consent tried together. Both actions were instituted to recover damages for injuries resulting from tbe operation of an automobile by tbe defendants. It was alleged tbat plaintiff Julia Margaret Caulder, five years of age, was struck by an automobile negligently driven by defendant Plunkett, and tbat sbe suffered a substantial personal injury. It was further alleged tbat defendant Plunkett was agent and employee of defendant Kivett Motor Sales, Inc., and acting at tbe time within tbe scope of bis employment. A. L. Caulder, father of Julia Margaret Caulder, sued for the recovery of expenses incurred by him in tbe necessary treatment of bis daughter’s injuries.
    Separate answers were filed by tbe defendants, each admitting tbat defendant Plunkett was tbe driver of tbe automobile on tbe occasion alleged, but denying tbat be was in any wise negligent and denying tbat be was at tbe time acting witbin tbe scope of bis employment by bis co-defendant. It was not denied tbat defendant Plunkett was an automobile salesman, selling certain automobiles for tbe defendant Motor Sales, Inc., on commission.
    Upon these allegations and tbe evidence offered in support thereof, separate issues as to each plaintiff were submitted to tbe jury, and answered in favor of the plaintiffs to tbe effect tbat tbe injuries complained of were caused by tbe negligence of defendant Plunkett, tbat be was not an independent contractor, and tbat be was at tbe time of tbe injuries tbe agent of defendant Motor Sales, Inc., acting witbin tbe scope of bis employment. Damages were awarded both plaintiffs.
    From judgments in accord with tbe verdicts, defendants appealed.
    
      Thos. C. Carter and John H. Vernon for plaintiffs, appellees.
    
    
      Long, Long & Barrett and U. J. Rhodes for defendant Kivett Motor Bales, Inc., appellant.
    
    
      G. 0. Barnhardt for defendant R. A. Plunkett, appellant.
    
   Appeal of Defendant Plunkett.

DeviN, J.

Tbe principal assignment of error brought forward by this defendant is tbe denial of bis motion for judgment of nonsuit. An examination of tbe record leads us to the conclusion tbat tbe evidence viewed in tbe light most favorable to tbe plaintiffs was of sufficient probative force to warrant its submission to tbe jury.

From this it appears tbat tbe plaintiff Julia Margaret Caulder, a child five years of age, while walking along tbe highway between Burlington and Graham, was struck by an automobile driven by defendant Plunkett, and seriously injured. At this point tbe paved highway passes through a thickly settled residential section. Intersecting streets cross tbe highway. A sign indicated tbat tbe speed of automobiles was required to be reduced to thirty miles per hour. Tbe time was 10 :20 a.m. Tbe highway was straight. There was no other traffic at tbe moment. Tbe plaintiff Julia Margaret Caulder bad been to a filling station on tbe highway and was returning to her home near-by, walking along tbe edge of tbe pavement. Defendant was driving an automobile belonging to bis codefendant, going in tbe same direction as tbe child, at tbe rate of sixty miles per hour. At tbe time she was struck tbe speed bad been reduced to forty-five miles per hour. Tbe born was not sounded. Only tbe noise caused by application of brakes was beard immediately before tbe impact. Tbe plaintiff was struck with such force as to throw her in tbe air. She fell on tbe side of tbe automobile and was carried a short distance and thrown off on tbe side of tbe road. Tbe automobile traveled 140 feet after striking tbe plaintiff before coming to a stop.

While tbe defendant’s evidence tended to show that the injury occurred in a somewhat different manner, and without negligence on the part of the defendant, we think there was some evidence of failure on his part to exercise due care under the circumstances, proximately resulting in injury to the plaintiffs. The defendant’s motion for judgment of nonsuit was properly denied. The other exceptions noted by defendant Plunkett are without substantial merit. As to defendant Plunkett, in the trial we find

No error.

Appeal of Defendant Kivett Motor Sales, INC.

This defendant’s motion for judgment of nonsuit was based upon additional grounds. It contended that the evidence was insufficient to show that the negligence of defendant Plunkett, driver of the offending automobile, was attributable to the defendant Motor Sales, Inc., upon the principle of respondeat superior. It is urged that the evidence did not warrant the finding that the driver was the agent and employee of this defendant, acting at the time within the scope of his' employment. And it is further contended that certain evidence offered by plaintiffs for the purpose of showing this material fact was incompetent and prejudicial.

This defendant relies upon its exception to the ruling of the court in admitting in evidence, over objection, the testimony of a witness to the effect that the driver of the automobile stated, a short time after the accident, that at the time of the injury he was taking defendant’s automobile to Graham to demonstrate it to a prospective purchaser. This declaration of the driver was not made at the time, of the injury or near enough to the transaction to constitute a part of the res gestae. It was the declaration of an agent or employee as to a past transaction offered for the purpose of showing that the employee was acting within the scope of his employment at the time of the injury. This evidence was incompetent and its admission prejudicial, necessitating a new trial. Pinnix v. Griffin, 219 N. C., 35, 12 S. E. (2d), 652; Brown v. Montgomery Ward & Co., 217 N. C., 368, 8 S. E. (2d), 199; Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 817. Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802. While there was some other evidence tending to show that the driver was acting within the scope of his employment by this defendant, we need not decide the question of its sufficiency to carry the case to the jury, as there must be a new trial, and the plaintiffs on another trial may offer other evidence in support of their allegations. Midgett v. Nelson, 212 N. C., 41, 192 S. E., 854; Morgan v. Benefit Society, 167 N. C., 262, 83 S. E., 479.

For the reasons stated, we conclude that on the appeal of defendant Motor Sales, Inc., there must be a

New trial.

BaeNHill, J.,

dissenting: I am unable to concur in tbe view adopted by tbe majority. In my opinion tbe evidence for plaintiffs fails to disclose any actionable negligence on tbe part of tbe defendant Plunkett. While there is testimony as to excessive speed, this is in nowise related to tbe accident as a proximate cause thereof. Nor does tbe majority opinion attempt to point out wherein tbe evidence on this aspect of tbe case is sufficient to repel tbe motion to nonsuit.

Tbe evidence for plaintiffs tends to show that tbe infant plaintiff was walking on tbe shoulder or dirt portion of tbe road and that Plunkett’s car never left tbe bard surface. “He stayed on tbe bard surface and stopped on tbe bard surface.” Neither of tbe two witnesses offered by plaintiffs actually saw tbe car and tbe child come in contact but looked tbe instant it happened. When they saw her “she was on tbe side of tbe car banging to it . . . looked like she was right up on tbe front fender on tbe side of tbe door, tbe way it looked from where I was at.” “He carried her a little bit through tbe air until she fell.” She was knocked to tbe side and fell in tbe weeds some distance from tbe road. Thus, it appears that tbe witnesses testified that she was “on tbe side of tbe car” and not that “she fell on tbe side of tbe car.”

If she bad continued along tbe shoulder and Plunkett did continue on tbe bard surface as tbe plaintiffs’ witnesses testified, no contact between her and Plunkett’s car could have occurred. What caused tbe contact or in what manner it was brought about is not disclosed by tbe evidence for tbe plaintiffs. Under these circumstances we may not assume negligent conduct on tbe part of Plunkett proximately causing tbe injury.

Defendants’ evidence does not aid tbe plaintiffs. On tbe contrary, it tends to fill in tbe hiatus in tbe evidence for tbe plaintiffs and to explain the unfortunate occurrence as an unavoidable accident in so far as Plunkett is concerned. Tbe other defendant is liable, if at all, only under tbe doctrine of imputed negligence.

After tbe front of Plunkett’s ear bad passed tbe child be felt something bump tbe side of bis car. As be passed she was on tbe shoulder and be was on tbe bard surface. This is tbe testimony of tbe individual defendant. Another witness who was following on behind Plunkett on still another car actually saw what happened and described tbe occurrence as follows:

“I beard tbe cry of tires of a car and just as I did I saw this child dart from tbe side of tbe road and as it turned out tbe child bit Mr. Plunkett’s car and was thrown back to tbe side of tbe ditch. . . . Tbe first time I saw tbe child she appeared from tbe side of tbe road, not tbe curb but tbe shoulder onto tbe concrete. When she went from tbe shoulder onto tbe concrete tbe car was about one-third of tbe distance from tbe right-hand side of tbe middle of tbe road. I could not say if any part of tbe car bad passed the child.”

Tbe statute, C. S., 567, provides that tbe ruling upon tbe motion for nonsuit made at tbe conclusion of tbe testimony is to be “upon a consideration of all tbe evidence.” I doubt tbat we bave ever given tbis provision of tbe statute tbe full force and effect intended by tbe Legislature. Even so, we bave beld tbat tbe testimony for defendants wbicb tends to amplify or explain tbat offered by tbe plaintiffs is to be considered upon sucb a motion. S. v. Fulcher, 184 N. C., 663, 113 S. E., 769; Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Hare v. Weil, 213 N. C., 489; Sellars v. Bank, 214 N. C., 300, 199 S. E., 266; Funeral Home v. Ins. Co., 216 N. C., 562, 5 S. E. (2d), 820.

In my opinion tbe motion first made should bave been allowed. In any event, applying tbe rule just stated, tbe second motion made at tbe conclusion of all tbe evidence should bave been sustained. Tbe evidence offered by defendants neither contradicts nor impeaches tbe evidence for plaintiffs. It serves only to explain, if indeed any explanation is required. Tbe evidence offered by plaintiffs fails to show actionable negligence. Tbe evidence offered by defendants in explanation completely exculpates them.

For tbe reasons stated I vote for a reversal.  