Lewis ex rel. Lewis v. Basketeria Stores, Inc., 201 N.C. 849 (1931)

Dec. 23, 1931 · Supreme Court of North Carolina

201 N.C. 849

C. F. LEWIS, Jr., by His Next Friend, C. F. LEWIS, v. BASKETERIA STORES, Incorporated.

(Filed 23 December, 1931.)

Civil action, before Clement, J., at April Term, 1931, of Foesyth.

The plaintiff, a boy nine years of age, instituted by his next friend, an action against the defendant for damages for personal injury sustained by collision with a truck owned by the defendant and operated by one of its agents. The action was instituted in the county court and three issues were submitted to the jury, as follows:

1. “Was Norman Casper operating the truck of the defendant within the scope of and in the execution of his authority?”

2. “If so, was the plaintiff injured by the negligence of the defendant, as alleged in the complaint?”

3. “What damages, if any, is the plaintiff entitled to recover of the defendant ?”

The issues were answered by the jury in favor of plaintiff and damages assessed in the sum of $400. Thereupon the defendant appealed to the Superior Court. The Superior Court judge overruled the exceptions filed by the defendant and affirmed the judgment of the county court, and the defendant appealed to this Court.

John E. Slawter for plaintiff.

Parrish & Deal for defendant.

Pee CueiaM.

The evidence tended to show that the plaintiff was struck while standing on the sidewalk by a truck belonging to the do-fendant. Tlie truck was used for delivering groceries in the due course of business. The driver of the truck left it to deliver a package of groceries and thereupon another employee of the defendant, who accompanied the driver in order to point out the homes of customers, undertook to turn the truck around in the street, and in so doing, ran it upon the sidewalk and into the plaintiff.

These facts invoke the principle of law declared in Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503, which is decisive of the merits of this case.

Affirmed.