Newman Ex Rel. Newman v. Queen City Coach Co.

EkogdeN, J. The contention that the plaintiff and the driver of the car were engaged in a joint enterprise is not sustained. “A common enterprise in riding is not enough. The circumstances must be such as to show that the plaintiff and the driver had such control over the car as to be substantially in the joint possession of it.” Charnock v. Refrigerating Co., 202 N. C., 105, 161 S. E., 707; Albritton v. Hill, 190 N. C., 429, 130 S. E., 5. Likewise the judge ruled correctly in submitting the cause to the jury. The evidence for plaintiff tended to show that, when the bus arrived at the top of the hill, 300 feet away, the driver did not slaken his speed, but drove straight ahead into the car. Upon this point the evidence of the driver and of the passengers in the bus was directly to the contrary. Hence an issue arose for the determination of the jury. In apt time the defendant requested the court to charge the jury as follows: “If you fiud from the evidence that the sole and proximate cause of plaintiff’s injury was due to the negligence of the driver of the automobile occupied by her, in turning around on Highway No. 20 in the night time, at the point where he did turn around, and that this, and this alone, was the proximate cause of her injury, you should answer the first issue ‘No.’” The record discloses that the court declined to give this instruction. As the evidence shows that the driver of the car undertook to turn around in the night time upon a populous highway at a point where there was no intersecting road, the defendant was entitled to have such instruction given the jury. However, it appears that such instruction was substantially given subsequently in the charge, in almost the exact language of the prayer. Therefore, the assignment of error is not sustained. There are other exceptions in the record, but a careful examination does not disclose that any of them warrants a new trial. No error.