#### J. H. PLOTT, Administrator BESSIE STAMEY, Deceased, v. GEORGE HOWELL and BOB HOWELL.

(Filed 27 May, 1926.)

Negligence — Automobiles—Family Car — Nonsuit—Appeal and Error.

Tbe father is liable in damages for injuries resulting in death proximately caused by the negligence of his son in driving his car used for family purposes, when the son was customarily permitted to drive; but a nonsuit against the father is not reversible error when the negligence of the son is not established in the action brought against both.

Civil actioN for damages for wrongful death, tried before Broch, Emergency Judge, at January Term, 1926, of Haywood.

The plaintiff’s intestate, a young girl about eighteen years of age, was attending a funeral at or near Woodrow, North Carolina, which village is situated between Waynesville and Canton. The evidence tended to show that there was a large crowd at the funeral, and that in front of the church cars were parked close together on each side of the highway. The plaintiff contended that as the people were leaving the church,. the defendant, George Howell, drove a Hudson automobile along said highway at a rapid and dangerous rate of speed and without giving any signal or notice of the approach of said car, and, as a result of the negligent operation of said automobile, ran over and killed plaintiff’s intestate while she was in the act of crossing the road.

There was also evidence on behalf of the defendant that the car was being operated in a careful manner, and that timely signals were duly given, and that plaintiff’s intestate ran out from behind a car parked *833on tbe side of tbe road immediately in front of defendant’s car, and tbat tbe defendant, in tbe exercise of due care, could not avoid striking plaintiff’s intestate.

Tbe defendant, Bob Howell, was tbe father of tbe defendant, George Howell, and was tbe owner of tbe automobile. Tbe automobile was purchased by tbe defendant, Bob Howell, who “permitted all tbe members of bis family to use said automobile for their convenience, pleasure and business.”

At tbe conclusion of plaintiff’s evidence, tbe court entered a judgment of nonsuit as to tbe defendant, Bob Howell, to which plaintiff excepted.

Tbe jury answered tbe issues as follows:

(1) "Was tbe plaintiff’s intestate injured and killed by tbe negligence of tbe defendant as alleged in tbe complaint? Answer: Yes.

(2) Did tbe plaintiff’s intestate, by her own negligence, contribute to her injury and death as alleged in the answer? Answer: Yes.

(3) Did tbe defendant, George Howell, recklessly and wilfully run over, injure and kill tbe plaintiff’s intestate as alleged in tbe complaint ? Answer: .

(4) What damages, if any, is tbe plaintiff entitled to recover of tbe defendant ? Answer: .

From tbe judgment of tbe court tbat plaintiff take nothing by tbe action, plaintiff appealed.

Hannah & Hannah, T. D. Bryson, Jr., and T. A. Ciarle for plaintiff.

Alley & Alley, Smathers, Robinson & Cogburn and Morgan & Ward for defendant.

Per Curiam.

It appearing tbat tbe defendant, Bob Howell, tbe owner of tbe automobile, bad purchased it for general family use, and tbat it was being operated by bis son, it was error to sustain tbe motion of nonsuit as to him. Watts v. Lefler, 190 N. C., 722. But this error is immaterial by reason of tbe fact tbat tbe jury found, upon competent evidence and under a proper charge by tbe trial judge, tbat tbe plaintiff’s intestate was guilty of contributory negligence. Tbe liability of defendant, Bob Howell, as owner of tbe automobile, used for family purposes, depended upon tbe liability of bis son, George Howell, who was operating tbe automobile at tbe time. If tbe son was not liable under tbe findings of tbe jury, then, certainly, tbe father and owner of tbe car would not be liable. Watts v. Lefler, supra.

We have examined tbe record with care and are compelled to conclude tbat tbe case was tried in accordance with tbe law, and, therefore, tbe verdict of tbe jury terminates tbe litigation.

No error.