Donivant v. . Swaim

Denny, J. The appellant assigns as error the refusal of the court below to allow his motion for judgment as of nonsuit, made at the close of plaintiff’s evidence and renewed at the close of all the evidence. The appellant contends the evidence adduced in the trial below is insufficient to show that the driver of his truck was his agent, and engaged in the scope of his employment at the time plaintiff sustained her injury, citing Temple v. Stafford, 227 N. C., 630, 43 S. E. (2d), 845; Rogers v. Black Mountain, 224 N. C., 119, 29 S. E. (2d), 203; Russell v. Cutshall, 223 N. C., 353, 26 S. E. (2d), 866; Riddle v. Whisnant, 220 N. C., 131, 16 S. E. (2d), 698; Heaves v. Haynes, 219 N. C., 535, 14 S. E. (2d), 503; Swicegood v. Swift & Co., 212 N. C., 396, 193 S. E., 277; Cotton v. Transportation Co., 197 N. C., 709, 150 S. E., 505; and Grier v. Grier, 192 N. C., 760, 130 S. E., 617. The plaintiff alleges in paragraph 3 of her complaint: “That at the times herein complained of, Hubert Ring was in the employ of the defendant and such agent was at such time engaged within the scope of his employment in the furtherance of the business of said defendant, and was at such time engaged in the very transaction out of which the personal injury to the plaintiff arose.” The defendant Swaim says in his answer: “That as to the allegations contained in Article 3 of the complaint, it is admitted that Hubert Ring was in the employ of the defendant on 5 April, 1946,” and in his further answer he says: “That *116 on 5 April, 1946, at about 8 :30 a.m., Hubert Ring, an employee of the defendant J. IT. Swaim, was operating the defendant J. TI. Swaim’s Ford pick-up truck in a westerly direction along West Lee Street in the City of Greensboro at a careful, prudent and lawful rate of speed not in excess of 25 miles per hour,” etc. The appellant introduced evidence tending to show that at the time of plaintiff’s injury, Hubert Ring was driving his truck on a trip for the appellant’s father, C. M. Swaim. The evidence is conflicting as to who paid Ring for his work on 5 April, 1946. It does appear, however, the appellant had employed him for two or three months prior to the time in question to do whatever he was told to do. The appellant operated four or five farms. He had two trucks at the time, and Hubert Ring had driven both of them. He had collected money, and on such trips he had driven the same truck that was involved in the accident on 5 April, 1946. The appellant testified: “He (my father) told me he wanted to use my truck the morning this accident happened. . . . My father and Ring were there and I told my father it was all right with me for him to use my truck and as long as I did not have anything else for Ring to do, that Ring could go with him. . . . When he worked for me I usually paid Ring about 30c an hour. . . . When my father asked me about the truck I told him Ring was there and not doing anything and might go with him.” We think the admissions in the appellant’s pleadings, together with the evidence introduced in the trial below, are sufficient to carry the case to the jury. Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503; Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446; Robertson v. Power Co., 204 N. C., 359, 168 S. E., 415; West v. Baking Co., 208 N. C., 526, 181 S. E., 551. Each case cited by the appellant is based upon facts which are distinguishable from the record before us. The ruling of the court below, in refusing to grant the appellant’s motion for judgment as of nonsuit, will be upheld. We now come to a more serious assignment of error. His Honor read subsection (c) of G. S., 20-150, to the jury, which is as follows: “The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any steam or electric railway grade crossing nor at any intersection of highway unless permitted so to do by a traffic or police officer,” and then the Court said : “That does not apply in this case but is read for the purpose of its intendment since there does not appear to be in this case any evidence of the establishment of a traffic light or placing of a police officer by the City of Greensboro.” The court was in error in charging the jury that the statute was not applicable to this case, since there was no evidence of the establishment of a traffic light or the placing of a police officer at the intersection by *117 the City of Greensboro. The statute clearly prohibits the driver of a vehicle from overtaking and passing any other vehicle proceeding in the same direction “at any intersection of a highway unless permitted so to do by a traffic or police officer.” In the absence of the permission of such officer, it is negligence per se to overtake and pass any other vehicle proceeding in the same direction at an intersection of a highway. Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326. We think the appellant is entitled to a new trial for the error pointed out in the above instruction, and it is so ordered. Therefore, we deem it unnecessary to discuss the remaining assignments of error. New trial.