Davis v. Lawrence

87 S.E.2d 915 (1955)

242 N.C. 496

Elijah DAVIS and Ester Davis v. Louis LAWRENCE and Leonard Lawrence.

No. 742.

Supreme Court of North Carolina.

June 30, 1955.

*916 Edwards, Sanders & Everett, Durham, for plaintiffs, appellants.

Blackwell M. Brogden, Durham, for defendants, appellees.

BOBBITT, Justice.

As far as the record discloses, plaintiffs' witnesses did not see the Lawrence car before the collision. Evidence adduced to establish plaintiffs' allegations of negligence is circumstantial. Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477. The sufficiency of such circumstantial evidence, if standing alone, need not be decided; for this testimony is to be considered in the light of Louis Lawrence's admissions at the scene when the cause of the collision was under discussion. Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196, and cases cited. When so considered, the evidence, apart from the excluded testimony as to defective brakes, was sufficient in our opinion to warrant submission thereof to the jury on the issue as to the alleged negligence of Louis Lawrence.

Plaintiffs, in paragraph 5 of the complaint, quoted above, allege facts sufficient to make the defendant-owner liable for the conduct of the defendant-operator under the doctrine of respondeat superior. Parker v. Underwood, 239 N.C. 308, 79 S.E.2d 765. The admission that defendant Leonard Lawrence was the registered owner of the Plymouth car was sufficient to require submission of the issue of agency to the jury. G.S. § 20-71.1; Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Jyachosky v. Wensil, 240 N.C. 217, 81 S.E.2d 644. If defendants offer evidence contradicting the allegations as to agency, such evidence may warrant a peremptory instruction based thereon but not a judgment of nonsuit. Spencer v. McDowell Motor Co., 236 N.C. 239, 72 S.E.2d 598; Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309; Jyachosky v. Wensil, supra.

For the reasons stated, the judgment of nonsuit, as to both defendants, is reversed.

Reversed.