Lazarus v. Blue Ridge Grocery Co.

161 S.E. 553, 201 N.C. 817, 1931 N.C. LEXIS 111

• Court: Supreme Court of North Carolina
• Decided: December 23, 1931
• Status: Published

Opinion

Pee Cueiam.

There is no error in the judgment of the Superior Court in this action, reversing the judgment of the general county court, by which the action was dismissed, at the close of the evidence, as of nonsuit.

There was evidence at the trial in the general county court tending to show that plaintiff was injured by the negligent operation of a truck on a street in the city of Asheville; that the truck was owned by the defendant and used exclusively for business purposes; that at the time plaintiff was injured, tbe truck was driven by a regular employee of defendant, employed for that purpose; and that this employee bad taken tbe truck from defendant’s place of business pursuant to tbe express orders of defendant. Tbis was sufficient to make a prima facie case for tbe plaintiff. Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503. Tbe evidence should, therefore, have been submitted to tbe jury. Parrish v. Armour & Co., 200 N. C., 654, 158 S. E., 188; Duncan v. Overton, 182 N. C., 80, 108 S. E., 387. Tbe evidence offered by defendant did not show such a deviation by tbe driver of tbe truck from defendant’s business as relieved defendant from liability to plaintiff, as a matter of law, on tbe principle of respondeat superior. Tbe driver of tbe truck, although be bad deviated from tbe ioute over which be was directed by defendant to drive tbe truck, was returning to tbis route at tbe time be injured tbe plaintiff by bis negligence. Tbis case is distinguishable from Martin v. Bus Lines, 197 N. C., 720, 150 S. E., 501; Wilkie v. Stancil, 196 N. C., 794, 147 S. E., 296, and Cotton v. Transportation Co., 197 N. C., 709, 150 S. E., 505.

Tbe action was properly remanded to tbe general county court for a new trial. Tbe judgment is

Affirmed.