EbviN, J.
Tbe exception to tbe refusal of tbe trial court to dismiss tbe action upon a compulsory nonsuit raises tbis question at tbe tbresbold of tbe appeal: Was tbe evidence introduced by plaintiff at the trial sufficient to carry tbe case to the jury, and to support its finding on tbe first issue, i.e., that tbe plaintiff was injured by tbe actionable negligence of tbe defendant?
Tbe plaintiff’s case is predicated on tbe theory that tbe defendant drove tbe truck at an excessive speed in a place outside a business or residential district, and thereby proximately caused personal injury to the plaintiff.
Tbe testimony shows that tbe defendant did not exceed tbe absolute speed limit of forty-five miles per hour fixed by the statute for tbe truck in tbe place where it was being.driven. G.S. 20-141 as rewritten by Section 17 of Chapter 1067 of the 1947 Session Laws. Tbis fact is not sufficient of itself, however, to exonerate tbe defendant from liability to tbe plaintiff. Tbe statute cited expressly provides that “tbe fact that tbe speed of a vehicle is lower than tbe foregoing limits shall not relieve tbe driver from the duty to decrease speed . . . when special hazard exists ... by reason of . . . highway conditions,” and that “no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under tbe conditions then existing.”
When tbe evidence adduced by plaintiff at tbe trial is appraised in tbe light most favorable for him, it warrants these inferences: That tbe surface of Highway 55 was rough and bumpy, rendering tbe road hazardous for occupants of motor vehicles proceeding thereon at ordinary speeds. That tbe defendant knew tbe hazardous condition of tbe highway and that bis employer, tbe plaintiff, was riding on tbe platform of tbe truck to steady its unfastened load. That tbe defendant was ordered by plaintiff “to drive slow.” That notwithstanding bis knowledge of tbe [103] condition of the road and of the position of the plaintiff, and notwithstanding the order to proceed slowly, the defendant drove the truck over the rough and bumpy road at a speed of forty miles per hour when he knew, or by the exercise of reasonable care would have known, that such speed in combination with the uneven surface of the highway was likely to occasion injury to the plaintiff. That the defendant did thereby in fact cause injury to the plaintiff.
This being true, whether the defendant drove the truck on the highway at a speed greater than was reasonable and prudent under the conditions then existing, and whether such speed was the proximate cause of injury to the plaintiff were questions of fact for the determination of the jury. Howard v. Bell, 232 N.C. 611, 62 S.E. 2d 323; Perry v. McLaughlin, 212 Cal. 1, 297 P. 554; Richard v. Roquevert (La. App.), 148 So. 92; Anderson v. Anderson, 188 Minn. 602, 248 N.W. 35; Morgan v. Krasne, 284 N.Y.S. 723, 246 App. Div. 799; Meath v. Northern Pac. Ray. Co., 179 Wash. 177, 36 P. 2d 533.
The exception to the refusal of the motion for nonsuit likewise raises this question: Was the plaintiff guilty of contributory negligence barring his recovery as a matter of law?
The test for determining whether the question of contributory negligence is one of law for the court or one of fact for the jury is restated in the recent case of Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307, where this is said: “Contributory negligence is an affirmative defense which the defendant must plead and prove. G.S. 1-139. Nevertheless, the rule is firmly embedded in our adjective law that a defendant may take advantage of his plea of contributory negligence by a motion for a compulsory judgment of nonsuit under G.S. 1-183 when the facts necessary to show the contributory negligence are established by the plaintiff’s own evidence. ... A judgment of involuntary nonsuit cannot be rendered on the theory that the plea of contributory negligence has been established by the plaintiff’s evidence unless the testimony tending to prove contributory negligence is so clear that no other conclusion can be reasonably drawn therefrom. ... If the controlling or pertinent facts are in dispute, or more than one inference may reasonably be drawn from the evidence, the question of contributory negligence must be submitted to the jury.”
When the plaintiff’s testimony is laid alongside this test, it is manifest that the question whether plaintiff was contributorily negligent was one of fact for the jury, and not one of law for the court. Graham v. Charlotte, 186 N.C. 649, 120 S.E. 466; Crane Co. v. Mathes, 42 F. 2d 215; Agnew v. Wenstrand, 33 Cal. App. 2d 21, 90 P. 2d 813; Chapman v. Pickwick Stages System, 117 Cal. App. 560, 4 P. 2d 283; Wirth v. Pokert, 19 La. App. 690, 140 So. 234; Nichols v. Rougeau, 284 Mass. 371, 187 [104] N.E. 710; Breger v. Feigenson Bros. Co., 264 Mich. 37, 249 N.W. 493; Clifton v. Caraker (Mo. App.), 50 S.W. 2d 758.
The evidence does not compel the single conclusion that the plaintiff had actual control and direction of the operation of the truck at the time of the accident, and in consequence participated in any negligence of the defendant in its management. It justifies the opposing inference that the defendant drove the truck over the rough and bumpy highway at an excessive speed in violation of the positive command of the plaintiff “to drive slow,” and that the relative positions of the parties in the vehicle robbed the plaintiff of the physical power to protest against such speed or to order the defendant to reduce it.
Furthermore, the testimony does not impel the sole deduction that it was necessarily negligent for the plaintiff to fail to fasten the building materials to the truck, and to ride on the vacant place at the rear of the truck to prevent the windows from falling and breaking. It supports these contrary inferences : That there was no practical way to fasten the concrete blocks, doors, and windows to the platform of the truck; that the plaintiff reasonably anticipated that the concrete blocks and doors would be held in place by gravity, and that he could ride on the rear of the platform and prevent the windows from falling and breaking without substantial risk to himself provided the truck should be driven at a proper speed; that he ordered the defendant to drive the truck slowly, and reasonably anticipated that his order would be obeyed; that the plaintiff took no risk in loading the truck or in riding thereon beyond that inherent in the ordinary activities of the business in which he was engaged; and that the unanticipated and disobedient act of the defendant in driving the truck at an excessive speed was the sole proximate cause of the plaintiff’s injury.
The third question posed by the appeal is whether the negligence of the defendant is imputable in law to the plaintiff so as to bar the plaintiff from suing the defendant for his personal injury. This problem arises on the exception to the refusal of the motion for nonsuit, an exception to the denial of a request for instruction, and a demurrer ore tenus.
The defendant insists initially on this phase of the litigation that the defendant operated the truck as a servant of the plaintiff, and that any negligence on his part in the management of the truck is imputable in law to his master, the plaintiff, and defeats this action.
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EbviN, J.
Tbe exception to tbe refusal of tbe trial court to dismiss tbe action upon a compulsory nonsuit raises tbis question at tbe tbresbold of tbe appeal: Was tbe evidence introduced by plaintiff at the trial sufficient to carry tbe case to the jury, and to support its finding on tbe first issue, i.e., that tbe plaintiff was injured by tbe actionable negligence of tbe defendant?
Tbe plaintiff’s case is predicated on tbe theory that tbe defendant drove tbe truck at an excessive speed in a place outside a business or residential district, and thereby proximately caused personal injury to the plaintiff.
Tbe testimony shows that tbe defendant did not exceed tbe absolute speed limit of forty-five miles per hour fixed by the statute for tbe truck in tbe place where it was being.driven. G.S. 20-141 as rewritten by Section 17 of Chapter 1067 of the 1947 Session Laws. Tbis fact is not sufficient of itself, however, to exonerate tbe defendant from liability to tbe plaintiff. Tbe statute cited expressly provides that “tbe fact that tbe speed of a vehicle is lower than tbe foregoing limits shall not relieve tbe driver from the duty to decrease speed . . . when special hazard exists ... by reason of . . . highway conditions,” and that “no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under tbe conditions then existing.”
When tbe evidence adduced by plaintiff at tbe trial is appraised in tbe light most favorable for him, it warrants these inferences: That tbe surface of Highway 55 was rough and bumpy, rendering tbe road hazardous for occupants of motor vehicles proceeding thereon at ordinary speeds. That tbe defendant knew tbe hazardous condition of tbe highway and that bis employer, tbe plaintiff, was riding on tbe platform of tbe truck to steady its unfastened load. That tbe defendant was ordered by plaintiff “to drive slow.” That notwithstanding bis knowledge of tbe [103] condition of the road and of the position of the plaintiff, and notwithstanding the order to proceed slowly, the defendant drove the truck over the rough and bumpy road at a speed of forty miles per hour when he knew, or by the exercise of reasonable care would have known, that such speed in combination with the uneven surface of the highway was likely to occasion injury to the plaintiff. That the defendant did thereby in fact cause injury to the plaintiff.
This being true, whether the defendant drove the truck on the highway at a speed greater than was reasonable and prudent under the conditions then existing, and whether such speed was the proximate cause of injury to the plaintiff were questions of fact for the determination of the jury. Howard v. Bell, 232 N.C. 611, 62 S.E. 2d 323; Perry v. McLaughlin, 212 Cal. 1, 297 P. 554; Richard v. Roquevert (La. App.), 148 So. 92; Anderson v. Anderson, 188 Minn. 602, 248 N.W. 35; Morgan v. Krasne, 284 N.Y.S. 723, 246 App. Div. 799; Meath v. Northern Pac. Ray. Co., 179 Wash. 177, 36 P. 2d 533.
The exception to the refusal of the motion for nonsuit likewise raises this question: Was the plaintiff guilty of contributory negligence barring his recovery as a matter of law?
The test for determining whether the question of contributory negligence is one of law for the court or one of fact for the jury is restated in the recent case of Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307, where this is said: “Contributory negligence is an affirmative defense which the defendant must plead and prove. G.S. 1-139. Nevertheless, the rule is firmly embedded in our adjective law that a defendant may take advantage of his plea of contributory negligence by a motion for a compulsory judgment of nonsuit under G.S. 1-183 when the facts necessary to show the contributory negligence are established by the plaintiff’s own evidence. ... A judgment of involuntary nonsuit cannot be rendered on the theory that the plea of contributory negligence has been established by the plaintiff’s evidence unless the testimony tending to prove contributory negligence is so clear that no other conclusion can be reasonably drawn therefrom. ... If the controlling or pertinent facts are in dispute, or more than one inference may reasonably be drawn from the evidence, the question of contributory negligence must be submitted to the jury.”
When the plaintiff’s testimony is laid alongside this test, it is manifest that the question whether plaintiff was contributorily negligent was one of fact for the jury, and not one of law for the court. Graham v. Charlotte, 186 N.C. 649, 120 S.E. 466; Crane Co. v. Mathes, 42 F. 2d 215; Agnew v. Wenstrand, 33 Cal. App. 2d 21, 90 P. 2d 813; Chapman v. Pickwick Stages System, 117 Cal. App. 560, 4 P. 2d 283; Wirth v. Pokert, 19 La. App. 690, 140 So. 234; Nichols v. Rougeau, 284 Mass. 371, 187 [104] N.E. 710; Breger v. Feigenson Bros. Co., 264 Mich. 37, 249 N.W. 493; Clifton v. Caraker (Mo. App.), 50 S.W. 2d 758.
The evidence does not compel the single conclusion that the plaintiff had actual control and direction of the operation of the truck at the time of the accident, and in consequence participated in any negligence of the defendant in its management. It justifies the opposing inference that the defendant drove the truck over the rough and bumpy highway at an excessive speed in violation of the positive command of the plaintiff “to drive slow,” and that the relative positions of the parties in the vehicle robbed the plaintiff of the physical power to protest against such speed or to order the defendant to reduce it.
Furthermore, the testimony does not impel the sole deduction that it was necessarily negligent for the plaintiff to fail to fasten the building materials to the truck, and to ride on the vacant place at the rear of the truck to prevent the windows from falling and breaking. It supports these contrary inferences : That there was no practical way to fasten the concrete blocks, doors, and windows to the platform of the truck; that the plaintiff reasonably anticipated that the concrete blocks and doors would be held in place by gravity, and that he could ride on the rear of the platform and prevent the windows from falling and breaking without substantial risk to himself provided the truck should be driven at a proper speed; that he ordered the defendant to drive the truck slowly, and reasonably anticipated that his order would be obeyed; that the plaintiff took no risk in loading the truck or in riding thereon beyond that inherent in the ordinary activities of the business in which he was engaged; and that the unanticipated and disobedient act of the defendant in driving the truck at an excessive speed was the sole proximate cause of the plaintiff’s injury.
The third question posed by the appeal is whether the negligence of the defendant is imputable in law to the plaintiff so as to bar the plaintiff from suing the defendant for his personal injury. This problem arises on the exception to the refusal of the motion for nonsuit, an exception to the denial of a request for instruction, and a demurrer ore tenus.
The defendant insists initially on this phase of the litigation that the defendant operated the truck as a servant of the plaintiff, and that any negligence on his part in the management of the truck is imputable in law to his master, the plaintiff, and defeats this action.
0 When J". W. Cowell furnished his truck with its driver, the defendant, to the plaintiff for the performance of the latter’s work, he placed the defendant under the control of the plaintiff. As a consequence, the defendant became the servant of the plaintiff while performing the plaintiff’s work. Leonard v. Transfer Co., 218 N.C. 667, 12 S.E. 2d 729; Shapiro v. Winston-Salem, 212 N.C. 751, 194 S.E. 479.
[105] The doctrine of imputed negligence visits upon one person legal responsibility for tbe negligent conduct of another. It applies, however, only in limited classes of cases. In its application to the law of master and servant, it appears in these two rules:
1. The master is liable to a third person for an injury caused by the actionable negligence of his servant acting within the scope of his employment. Dickerson v. Refining Co., 201 N.C. 90, 159 S.E. 446; 35 Am. Jur., Master and Servant, sections 532, 543; Michie: The Law of Automobiles in North Carolina (3d Ed.), section 139.
2. The master is barred from recovery from a negligent third person by the contributory negligence of his servant acting within the scope of his employment. Hampton v. Hawkins, 219 N.C. 205, 13 S.E. 2d 227; 38 Am. Jur., Negligence, section 236; Am. Law Inst. Restatement, Torts, Vol. 2, section 486.
The doctrine of imputed negligence has no application, however, to actions brought by the master against the servant to recover for injuries suffered by the former as a result of the latter’s actionable negligence. Branch v. Chappell, 119 N.C. 81, 25 S.E. 783; Shaker v. Shaker, 129 Conn. 518, 29 A. 2d 765; Donohue v. Jette, 106 Conn. 231, 137 A. 724; Rosenfield v. Matthews, 201 Minn. 113, 275 N.W. 698; Darman v. Zilch, 56 R.I. 413, 186 A. 21, 110 A.L.R. 826, and cases collected in the ensuing annotation; Michie: The Law of Automobiles in North Carolina (3d Ed.), section 58; 65 C.J.S., Negligence, section 161.
These differing applications of the doctrine of imputed negligence are clearly understandable if due heed is paid to a fundamental truth. One of the basic concepts of our jurisprudence is embodied in the ancient Latin maxim ratio, legis est anima legis; mutata legis rations, mutatur et lex, meaning “reason is the soul of law; the reason of law being-changed, the law is also changed.”
Inasmuch as the master undertakes to manage his affairs through his servant, it is just that he be charged in law with the negligent conduct of his servant acting within the scope of his employment where the rights or liabilities of third persons are involved. But it would offend justice and right to impute the negligence of a servant to his master and thus exempt him from the consequences of his own wrong-doing where the negligence proximately causes injury to a master who is without personal fault.
The defendant contends secondarily on the present phase of the controversy that he and the plaintiff were engaged in a joint enterprise in the operation of the truck, and that any negligence on his part in its management is imputable in law to his fellow adventurer, the plaintiff, and defeats this action.
The legal standing of the defendant is not improved a whit by the assumption that he and the plaintiff were engaged in a joint enterprise [106] in the operation of tbe truck; for the relevant legal rule in such case is as follows: “The doctrine of joint enterprise whereby the negligence of one member of the enterprise is imputable to others, resting as it does upon the relationship of agency of one for the other, does not apply in actions between members of the joint enterprise and does not, therefore, prevent one member of the enterprise from holding another liable for personal injuries inflicted by the latter’s negligence in the prosecution of the enterprise. In other words, the doctrine of common or joint enterprise as a defense is applicable only as regards third persons and not parties to the enterprise. Ordinary negligence on the part of a member of a joint enterprise, resulting in injury to the other member, renders him liable for the injury.” 38 Am. Jur., Negligence, section 238. See, also, these accordant authorities: Legerwood v. Legerwood, 114 Cal. App. 538, 300 P. 144; Mencher v. Goldstein, 269 N.Y.S. 846, 240 App. Div. 290; Smith v. Williams, 180 Or. 626, 178 P. 2d 710, 173 A.L.R. 1220; 65 C.J.S., Negligence, section 158; Blashfield: Cyclopedia of Automobile Law and Practice (Perm. Ed.), sections 2373, 2868.
The legal questions presented by the remaining exceptions have been decided adversely to defendant in well considered precedents, and require no discussion.
The judgment of the Superior Court will not be disturbed; for there is in law
No error.