Taylor v. . Stewart

95 S.E. 167, 175 N.C. 199, 1918 N.C. LEXIS 34

• Court: Supreme Court of North Carolina
• Decided: March 13, 1918
• Status: Published

Opinion

Aulew, J.

The verdict of the jury must be construed with reference to the trial (Kearney v. R. R., 158 N. C., 532), and it is permissible and proper to examine the pleadings for the purpose of ascertaining the issuable facts and the ground on which the liability of the defendants depend, and when we do so, it is apparent that the right to recover against the defendant J. W. Stewart is dependent on the negligence of his son James, who was driving the automobile at the time of the injury and death.

The plaintiff, in effect, alleges that the death of his intestate was caused by the negligent act of James, .and that the father is responsible because he permitted or authorized his son to run the automobile, and as thus understood, the finding upon the first issue is determinative of the right to recover against both defendants. Tfiis is the conclusion reached on the former appeal in this action, where the Court, before discussing the liability of the father upon the ground that he had authorized the act of the son, says: “Taking all of these circumstances into consideration, the question of proximate cause must be submitted to the jury. If they should find that death of the plaintiff’s intestate was an unavoidable accident, which a prudent chauffeur, authorized by law to run a machine, could not by the exercise of reasonable care have avoided, then the defendants were not liable; but if they should find from all the evidence that the proximate cause of the intestate’s death was the fast driving and lack of attention and due care upon the pa-rt of the thirteen-year-old boy, driving the machine in violation of law, then he would be liable.”

No error.