Williams v. . May

*79 BRowN, J. Tbe evidence. tends to prove that an automobile owned by the defendant May was being operated by his daughter Mary May, assisted by one Orendorff, a party defendant upon whom no summons has been served. The machine ran into the plaintiff’s vehicle, in consequence of which he was seriously injured. The defendant excepted to the issues submitted by the court and tendered other issues which the court refused to submit. The issues submitted are in the usual form in cases of this character and present every contention that is raised by the pleadings. They are similar to those approved by this Court in Clark v. Wright, 167 N. C., 646. The defendant excepts because the court allowed the plaintiff to amend his complaint, contending that the amendment allowed constituted a new cause of action. The original cause of action is that the plaintiff was injured by the negligence of Orendorff and the minor daughter of the defendant May. The amendment alleges that at the time of the injury the defendant Orendorff was in the employ of the codefendant, Benjamin May, for the purpose of instructing and teaching his minor daughter to drive the automobile, and that the said agent or employee, Orendorff, was negligent and reckless in permitting the automobile to run against the buggy of the plaintiff. "We think that this is the same cause of action practically as is set out in the original complaint. The amendment seems to have been unnecessary, and is, therefore, harmless. Upon the facts in evidence, established to the satisfaction of the jury, the plaintiff was entitled to recover upon the cause of action set out in the original complaint. The defendant moved to nonsuit at the close of the evidence and also asked the court to charge the jury that there is no evidence for the consideration of the jury that the defendant Orendorff was the agent of the defendant May. The motion to nonsuit was properly denied. The evidence introduced for the plaintiff must be taken as true upon this motion, and that offered by the defendant must not be considered. If in any view of the evidence offered for the plaintiff the jury may have reasonably inferred that the plaintiff was injured by the negligence of the defendant’s agent, acting within the scope of his duty, then the motion was properly overruled. There is evidence that the car belonged to the defendant May; that he had purchased it for the use of his family; that he permitted Oren-dorff to operate the car upon the public streets of Sanford for the purpose of teaching his daughter to run the car. .At the time when the injury occurred his daughter was driving the car, after only a few days’ experience, and Orendorff had his hand on the wheel. The plaintiff was in liis buggyj to which a mule was hitched, resting under the shade of some trees on the right-hand side of Hawkins Avenue, in the center *80 of tbe town of Sanford. Tbe car of tbe defendant turned suddenly into Hawkins Avenue from Carthage Street. Tbe plaintiff beckoned to tbe car and hollered to tbem to go back, but tbe signal was not obeyed. Tbe ear continued coming directly towards tbe plaintiff and on tbe wrong side of tbe street until it struck tbe buggy wheel, turned tbe buggy over, and threw tbe plaintiff to tbe ground with great violence, in consequence of which be was painfully and permanently injured. Tbe evidence tends to prove that Orendorff, an employee of tbe Cadillac Company, was teaching tbe defendant’s daughter to operate tbe machine by and with tbe consent of tbe defendant; that tbe defendant bad purchased tbe machine for tbe use of bis family. Taking all tbe facts offered by tbe plaintiff to be true, we think tbe jury may have reasonably inferred that tbe machine was being operated with tbe consent of tbe defendant and that bis daughter was being taught to operate it for tbe convenience of tbe family, and that tbe practice in operating tbe car was being conducted upon tbe public streets of tbe town by bis daughter with tbe assistance of Orendorff.. Tbe case, we think, differs very materially from Linville v. Nissen, 162 N. C., 95. In that case it was in evidence that tbe son of tbe defendant took tbe machine of bis father out of tbe garage not only without the latter’s consent, but against bis express orders, and used it for a pleasure ride, without bis father’s knowledge, and that tbe son was an experienced chauffeur. In this case, according to tbe evidence, Oren-dorff was using this machine to teach tbe defendant’s daughter and was acting for tbe defendant and within tbe scope of bis duties, and while in pursuance of them tbe plaintiff was injured by bis negligence. Tbe evidence justifies these inferences, and consequently we think bis Honor very properly denied tbe defendant’s motion. We think tbe charge of tbe court is free from error and clearly and properly presented the case to tbe jury. No error.