West v. Collins Baking Co.

CONNOR, J. On their appeal to this Court, the defendants contend that there was error in the-refusal of the judge of the Superior Court to sustain their exception to the admission of a paragraph of the complaint at the trial in the general county court as evidence. The material allegations of the paragraph are admitted in the answers. For this reason the contentions of the defendants cannot be sustained. The admission in the answer that on the day plaintiff’s intestate was injured by the truck which was owned by the defendant Collins Baking, Company, and driven by the defendant Cecil Pope, the defendant Cecil Pope was an employee of his codefendant, and as such employee was. authorized and directed from time to time to drive said truck, was evidence tending to show that at the time plaintiff’s intestate was injured, the defendant Cecil Pope was driving the truck within the scope of his employment. See Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503. The defendants further contend that there was error in the refusal of the judge of the Superior Court to sustain their exception to the refusal of the general county court to allow their motion for judgment as of nonsuit at the close of all the evidence. There was evidence at the trial in the general county court tending to show that plaintiff’s intestate was killed by the negligence of the defendant. There was no evidence tending to show that plaintiff’s intestate by his own negligence contributed to. his injuries which resulted in his death. For this reason, the contention *529 of tbe defendants cannot be sustained. There was no error in the refusal of the trial court to allow defendants’ motion for judgment as of nonsuit. The principle applied in Hinnant v. R. R., 202 N. C., 489, 163 S. E., 555, and in Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761, that when two defendants have been negligent, but the negligence of one is insulated by the negligence of the other, which is the sole proximate cause of the injury suffered by the plaintiff, the former is not liable to the plaintiff for damages resulting from the injury, is not applicable to the facts shown by all the evidence at the trial of the instant case. Here, all the evidence shows that the proximate cause of the injuries which resulted in the death of plaintiff’s intestate, was .the joint and concurrent negligence of the defendants. For this reason the defendants are jointly liable to the plaintiff, on the principle stated in White v. Carolina Realty Company, 182 N. C., 536, 109 S. E., 564, and applied in Myers v. Southern Public Utilities Co., ante, 293 (295), 180 S. E., 695, as follows: “Where an injury to a third person is proximately caused by the negligence of two persons, to whatever degree each may have contributed to the result, the negligence of one may not exonerate the other, each being a joint tort-feasor, and the person so injured may maintain his action for damages against one or both.” As neither of the assignments of error on this appeal can be sustained, the judgment is Affirmed.