Appeal of Defendant Plunkett.
DeviN, J.Tbe principal assignment of error brought forward by this defendant is tbe denial of bis motion for judgment of nonsuit. An examination of tbe record leads us to the conclusion tbat tbe evidence viewed in tbe light most favorable to tbe plaintiffs was of sufficient probative force to warrant its submission to tbe jury.
From this it appears tbat tbe plaintiff Julia Margaret Caulder, a child five years of age, while walking along tbe highway between Burlington and Graham, was struck by an automobile driven by defendant Plunkett, and seriously injured. At this point tbe paved highway passes through a thickly settled residential section. Intersecting streets cross tbe highway. A sign indicated tbat tbe speed of automobiles was required to be reduced to thirty miles per hour. Tbe time was 10 :20 a.m. Tbe highway was straight. There was no other traffic at tbe moment. Tbe plaintiff Julia Margaret Caulder bad been to a filling station on tbe highway and was returning to her home near-by, walking along tbe edge of tbe pavement. Defendant was driving an automobile belonging to bis codefendant, going in tbe same direction as tbe child, at tbe rate of sixty miles per hour. At tbe time she was struck tbe speed bad been reduced to forty-five miles per hour. Tbe born was not sounded. Only tbe noise caused by application of brakes was beard immediately before tbe impact. Tbe plaintiff was struck with such force as to throw her in tbe air. She fell on tbe side of tbe automobile and was carried a short distance and thrown off on tbe side of tbe road. Tbe automobile traveled 140 feet after striking tbe plaintiff before coming to a stop.
*439While tbe 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 of respondeat 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. Benefit Society, 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.