Gunter v. Noll Construction Co.

PARKER, J. Defendant challenges the sufficiency of plaintiff’s evidence to support certain of the court’s findings of fact. Among these were the findings that several weeks prior to the accident defendant had laid a sewer line across Riddle Road; that in order to do so it had removed a large section of pavement; that upon completion of the line defendant had partially filled the ditch, which it had cut across the road, with sand and gravel, but had not completely brought the ditch up to the normal level of the road and had not resurfaced the road; and that on the date of the accident and for many weeks prior thereto there existed a sizeable declivity in the road which was created by defendant in its undertaking to lay the pipe across the road. We think the challenge is well taken. The only evidence which in any way connects defendant with the hole which plaintiff contends caused his truck to overturn was contained in the testimony of plaintiff’s witness, W. H. Watkins. [547] This witness testified that he resided on Riddle Road and that his front porch was right in front of the hole. He was then asked: Question: “Do you know whether or not Noll Construction Company was doing work there in front of your house?” Answer: “Well, according to the names on the equipment they was doing it.” There was no evidence to indicate what equipment was referred to or what names were on it. Nothing indicates whether the equipment referred to was used for digging the ditch, laying the sewer pipe, refilling the ditch, or for some other purpose. Other than defendant’s corporate name and its admission that it was doing “certain construction work on roads and streets in and about the City of Durham,” there is no evidence to indicate the nature of defendant’s business. There was no evidence of any contract or agreement between defendant and the City of Durham or anyone else to dig a ditch, lay a sewer pipe, restore the broken pavement, or do anything else. Defendant’s admission that Riddle Road was one of the streets upon which it “was working,” was not sufficient to connect defendant with the hole which caused plaintiff’s damages, particularly in view of defendant’s denial of plaintiff’s allegation that it had done “some excavation work on the said Riddle Road and had failed to completely repair said road.” Plaintiff’s own evidence disclosed that persons other than the defendant company had performed work on Riddle Road. Plaintiff’s witness J. E. Marks, after describing the hole in question, in response to a question from plaintiff’s counsel, testified as follows: Question: “All right, sir, now, do you know approximately how long the road has been in this condition?” Answer: “No, I’ll be afraid to say, for they kept the road tore up practically all the time. If it won’t the state, it was one outfit, and then somebody else. Just like all the rest of the City.” (Emphasis added.) The rule announced in Knight v. Associated Transport, 255 N.C. 462, 122 S.E. 2d 64, is not applicable to the present case. In that case the Court said: “. . . we have come to the conclusion that where common carriers of freight are operating tractor-trailer units, on public highways, and such equipment bears the insignia or name of such carrier, and the motor vehicle is involved in a collision or inflicts injury upon another, evidence that the name of the defendant was painted or inscribed on the motor vehicle which inflicted the injury constitutes prima facie evidence that the defendant whose [548] na'me or identifying insignia appears thereon was the owner of such vehicle and that the driver thereof was operating it for and on behalf of the defendant.” Even if it should be held that the quoted rule applies to others than “common carriers of freight . . . operating tractor-trailer units, on public highways,” which the Court in Freeman v. Biggers Brothers, Inc., 260 N.C. 300, 132 S.E. 2d 626, found it unnecessary to decide, the rule is at least limited to cases in which the name of the defendant was inscribed on the very motor vehicle which inflicted the injury. The opinion in Knight v. Associated Transport, supra, made reference to the large number of the defendant’s tractors and trailers in operation on the public highways, and the rule was adopted as “a just one, and well-nigh necessary if those who happened to be injured by the negligent operation of such equipment are to have the protection to which they are justly entitled.” No such necessity appears in the present case, and we see no legitimate reason to stretch the rule to the extent which we would be required to do in order to make good the deficiencies in plaintiff’s proof in the present case. For failure of the evidence to support crucial findings of fact, there must be a New trial. MallaRD, C.J., and BRItt, J., concur.