BARNHILL, J., dissenting. The two cases entitled as above were by consent tried together. Both actions were instituted to recover damages for injuries resulting from the operation of an automobile by the defendants. It was alleged that plaintiff Julia Margaret Caulder, five years of age, was struck by an automobile negligently driven by defendant Plunkett, and that she suffered a substantial personal injury. It was further alleged that defendant Plunkett was agent and employee of defendant Kivett Motor Sales, Inc., and acting at the time within the scope of his employment. A. L. Caulder, father of Julia Margaret Caulder, sued for the recovery of expenses incurred by him in the necessary treatment of his daughter's injuries.
Separate answers were filed by the defendants, each admitting that defendant Plunkett was the driver of the automobile on the occasion *Page 438 alleged, but denying that he was in any wise negligent and denying that he was at the time acting within the scope of his employment by his codefendant. It was not denied that defendant Plunkett was an automobile salesman, selling certain automobiles for the defendant Motor Sales, Inc., on commission.
Upon these allegations and the evidence offered in support thereof, separate issues as to each plaintiff were submitted to the jury, and answered in favor of the plaintiffs to the effect that the injuries complained of were caused by the negligence of defendant Plunkett, that he was not an independent contractor, and that he was at the time of the injuries the agent of defendant Motor Sales, Inc., acting within the scope of his employment. Damages were awarded both plaintiffs.
From judgments in accord with the verdicts, defendants appealed. APPEAL OF DEFENDANT PLUNKETT. The principal assignment of error brought forward by this defendant is the denial of his motion for judgment of nonsuit. An examination of the record leads us to the conclusion that the evidence viewed in the light most favorable to the plaintiffs was of sufficient probative force to warrant its submission to the jury.
From this it appears that the plaintiff Julia Margaret Caulder, a child five years of age, while walking along the highway between Burlington and Graham, was struck by an automobile driven by defendant Plunkett, and seriously injured. At this point the paved highway passes through a thickly settled residential section. Intersecting streets cross the highway. A sign indicated that the speed of automobiles was required to be reduced to thirty miles per hour. The time was 10:20 a.m. The highway was straight. There was no other traffic at the moment. The plaintiff Julia Margaret Caulder had been to a filling station on the highway and was returning to her home near-by, walking along the edge of the pavement. Defendant was driving an automobile belonging to his codefendant, going in the same direction as the child, at the rate of sixty miles per hour. At the time she was struck the speed had been reduced to forty-five miles per hour. The horn was not sounded. Only the noise caused by application of brakes was heard immediately before the impact. The plaintiff was struck with such force as to throw her in the air. She fell on the side of the automobile and was carried a short distance and thrown off on the side of the road. The automobile traveled 140 feet after striking the plaintiff before coming to a stop. *Page 439
While the defendant's evidence tended to show that the injury occurred in a somewhat different manner, and without negligence on the part of the defendant, we think there was some evidence of failure on his part to exercise due care under the circumstances, proximately resulting in injury to the plaintiffs. The defendant's motion for judgment of nonsuit was properly denied. The other exceptions noted by defendant Plunkett are without substantial merit. As to defendant Plunkett, in the trial we find
No error.
APPEAL OF DEFENDANT KIVETT MOTOR SALES, INC.
This defendant's motion for judgment of nonsuit was based upon additional grounds. It contended that the evidence was insufficient to show that the negligence of defendant Plunkett, driver of the offending automobile, was attributable to the defendant Motor Sales, Inc., upon the principle ofrespondeat superior. It is urged that the evidence did not warrant the finding that the driver was the agent and employee of this defendant, acting at the time within the scope of his employment. And it is further contended that certain evidence offered by plaintiffs for the purpose of showing this material fact was incompetent and prejudicial.
This defendant relies upon its exception to the ruling of the court in admitting in evidence, over objection, the testimony of a witness to the effect that the driver of the automobile stated, a short time after the accident, that at the time of the injury he was taking defendant's automobile to Graham to demonstrate it to a prospective purchaser. This declaration of the driver was not made at the time of the injury or near enough to the transaction to constitute a part of the res gestae. It was the declaration of an agent or employee as to a past transaction offered for the purpose of showing that the employee was acting within the scope of his employment at the time of the injury. This evidence was incompetent and its admission prejudicial, necessitating a new trial. Pinnix v. Griffin,219 N.C. 35, 12 S.E.2d 652; Brown v. Montgomery Ward Co.,217 N.C. 368, 8 S.E.2d 199; Parrish v. Mfg. Co., 211 N.C. 7,188 S.E. 817. Hubbard v. R. R., 203 N.C. 675, 166 S.E. 802. While there was some other evidence tending to show that the driver was acting within the scope of his employment by this defendant, we need not decide the question of its sufficiency to carry the case to the jury, as there must be a new trial, and the plaintiffs on another trial may offer other evidence in support of their allegations.Midgett v. Nelson, 212 N.C. 41, 192 S.E. 854; Morgan v. BenefitSociety, 167 N.C. 262, 83 S.E. 479.
For the reasons stated, we conclude that on the appeal of defendant Motor Sales, Inc., there must be a
New trial. *Page 440