Kennedy v. Lookadoo, 203 N.C. 650 (1932)

Dec. 7, 1932 · Supreme Court of North Carolina
203 N.C. 650


(Filed 7 December, 1932.)

Highways B n: Master and Servant D c — Negligence of truck driver was not established and question of whether he was employee is immaterial.

Where in an action for wrongful death the evidence is to the effect that the plaintiff’s intestate, a child about four years old, ran suddenly into a public street and into the side of a truck and was struck and killed by its rear wheels, and that the truck was being driven in a careful manner at a lawful rate of speed, and that the truck driver could not have seen the child in the exercise of due care, the action will be dismissed on motion of nonsuit, the plaintiff having failed to establish negligence, and the question of whether the truck driver was an employee of his codefendant or was an independent contractor need not be considered.

Appeal by plaintiff from MacRae, Special Judge, at March Term, 1932, of RowaN.


Tbis is an action to recover damages for tbe death of plaintiff’s intestate, alleged to have been caused by tbe negligence of tbe defendant, R. P. Lookadoo, an employee of tbe defendant, Evans Contracting Company, while engaged in tbe performance of tbe duties of bis employment.

Prom judgment dismissing tbe action as of nonsuit, at tbe close of tbe evidence for tbe plaintiff, plaintiff appealed to tbe Supreme Court.

R. Lee Wright for plaintiff.

Quinn, Hamrick & Harris for defendant, R. P. Lookadoo.

Rendleman & Rendleman for defendant, Evans Contracting Company.

Per Curiam.

All the evidence at the trial of tbis action showed that plaintiff’s intestate, a child about four years of age, ran into a public street in the city of Salisbury, N. C., as a truck heavily loaded with stone and cement, and driven by the defendant, R. P. Lookadoo, was passing. Tbe child ran into the truck, and was injured by the rear wheels which struck and passed over him. His death resulted almost immediately *651from bis injuries. There was no evidence tending to show that the child was injured and killed by the negligence of the defendant, E. P. Look-adoo. On the contrary the evidence showed that the defendant, E. P. Lookadoo, was driving the truck slowly and in a lawful manner, and that he did not see, and because another truck had stopped immediately ahead of him, making it necessary for him to pass around this truck, could not by the exercise of reasonable care have seen the child as he ran suddenly from the sidewalk into the street.

As there was no evidence from which the jury could have found that plaintiff’s intestate was killed by the negligence of the defendant, E. P. Lookadoo, it is immaterial whether he was an employee of his eodefend-ant, Evans Contracting Company, as alleged by the plaintiff, or an independent contractor as alleged by said company.

There was no error in the judgment dismissing the action for the reason that plaintiff failed to offer at the trial any evidence tending to sustain the allegations which constitute his cause of action. The judgment is