{ "id": 8625665, "name": "THADDEUS GOSS, by His Next Friend, T. R. GOSS, v. WARREN R. WILLIAMS", "name_abbreviation": "Goss ex rel. Goss v. Williams", "decision_date": "1928-10-24", "docket_number": "", "first_page": "213", "last_page": "223", "citations": [ { "type": "official", "cite": "196 N.C. 213" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "150 N. C., 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271727 ], "opinion_index": 0, "case_paths": [ "/nc/150/0493-01" ] }, { "cite": "154 N.. C., 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652749, 8652727 ], "opinion_index": 0, "case_paths": [ "/nc/154/0474-02", "/nc/154/0474-01" ] }, { "cite": "57 Mich., 107", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1428180 ], "opinion_index": 0, "case_paths": [ "/mich/57/0107-01" ] }, { "cite": "182 N. C., 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656362 ], "opinion_index": 0, "case_paths": [ "/nc/182/0470-01" ] }, { "cite": "122 S. E., 430", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "138 Va., 519", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 1866838 ], "opinion_index": 0, "case_paths": [ "/va/138/0519-01" ] }, { "cite": "193 N. C., 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217890 ], "opinion_index": 0, "case_paths": [ "/nc/193/0402-01" ] }, { "cite": "189 N. C., 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653609 ], "opinion_index": 0, "case_paths": [ "/nc/189/0129-01" ] }, { "cite": "188 N. C., 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653742 ], "opinion_index": 0, "case_paths": [ "/nc/188/0332-01" ] }, { "cite": "167 N. C., 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272033 ], "opinion_index": 0, "case_paths": [ "/nc/167/0220-01" ] }, { "cite": "192 N. C., 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622420 ], "opinion_index": 0, "case_paths": [ "/nc/192/0376-01" ] }, { "cite": "191 N. C., 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631117 ], "opinion_index": 0, "case_paths": [ "/nc/191/0690-01" ] }, { "cite": "108 N. E., 406", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "214 N. Y., 249", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 72097 ], "pin_cites": [ { "page": "p. 252" } ], "opinion_index": 0, "case_paths": [ "/ny/214/0249-01" ] }, { "cite": "245 N. Y., 158", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1979766 ], "opinion_index": 0, "case_paths": [ "/ny/245/0158-01" ] }, { "cite": "51 L. R. A. (N. S.), 970", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "146 N. W., 1091", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "125 Minn., 277", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 204582 ], "opinion_index": 0, "case_paths": [ "/minn/125/0277-01" ] }, { "cite": "190 N. C., 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605817 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/190/0429-01" ] }, { "cite": "189 N. C., 410", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "189 N. C., 131", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 1207, "char_count": 29427, "ocr_confidence": 0.499, "pagerank": { "raw": 9.410629928806164e-07, "percentile": 0.9805952007240577 }, "sha256": "0ae693865ee6db4ef98693688742f5f40b8c009edc42dbb144ef8bd04ed850b1", "simhash": "1:95e088fa7d8fa953", "word_count": 5245 }, "last_updated": "2023-07-14T19:28:30.620798+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Beogden, J., dissenting." ], "parties": [ "THADDEUS GOSS, by His Next Friend, T. R. GOSS, v. WARREN R. WILLIAMS." ], "opinions": [ { "text": "Claeicson, J.\nThe defendant moved for judgment as in case of non-spit' at the close of plaintiff\u2019s evidence and at the conclusion of all the evidence. C. S., 567. The evidence on the part of plaintiff was circumstantial in its nature,.but sufficient to be submitted to the jury. The probative force was for them to determine.\n\u201cIt is the settled rule of practice and the accepted position in this jurisdiction that, on a motion to nonsuit, the evidence -which makes for the plaintiff\u2019s claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant\u2019s witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is \u2018entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.\u2019 \u201d Christman v. Hilliard, 167 N. C., p. 6; Oil Co. v. Hunt, 187 N. C., p. 159; Davis v. Long, 189 N. C., 131; Nash v. Royster, 189 N. C., 410; Smith v. Ritch, ante, at p. 74.\nThis Court\u2019s jurisdiction is confined to review, upon appeal of \u201cany decision of the courts below, upon any matters of law or legal inference.\u201d Const. N C., Art. IV, sec. 8.\nWe tbink there are several important propositions 'of law for this Court to determine:\n1. \u2018Whether liability of the owner for negligent operation of a \u2018family purpose\u2019 car arises when the car is being used by the wife of the owner and driven by a third person by permission of the wife of the owner, the latter being present in the ear on a seat beside her ?\u201d\nIn Watts v. Lefler, 190 N. C., at p. 725-6, this Court said: \u201cThe father \u2014 the owner of the automobile and the head of the family \u2014 has the authority to say by whom, when and where his automobile shall be driven or he can forbid the use altogether. With full knowledge of an instrumentality of this kind, he turns over the machine to his family for \u2018family use.\u2019 When he does this, under the \u2018family doctrine,\u2019 which applies in this State, he is held responsible for the negligent operation of the machine he has entrusted to the members of his family.\u201d\nIn the instant case, under the \u201cfamily purpose\u201d doctrine rule, which prevails in this jurisdiction, if the wife was actually operating the car negligently, and the negligence was the proximate cause of the injury, her husband would be liable. She was sitting on the front seat, having turned the wheel over to one of the shopping party. Under the \u201cfamily purpose\u201d doctrine rule, the wife had control and authority over the car, and over the driver, and, in contemplation of law, the negligence of the driver was her negligence, which fastened liability on the defendant owner of the automobile. Could it be said that if she tired of driving and turned the wheel over to a helper, an instrumentality of this kind, that liability upon the owner for negligent operation would not arise? We think not. Under the circumstances, there is an implied agency that fastens liability on the owner.\nIt is a matter of common knowledge that the father, the head of the family, the owner of the automobile, when he turns a car like the one in question, a Buick sedan, over to his wife for use, that she does not ride in it alone, but usually rides with friends. Especially is this so on a trip of some distance, the driver becomes tired or for other causes the wheel is frequently turned over to some member of the party. Under, such circumstances as in the present ease, the wife having the control, authority and direction over the car, and she in turn permits one of\" the party to run it and sits on the front seat beside her, the owner of the car impliedly consents, the agency is extended, the driver is a helper and the owner will be held liable for actionable negligence on the part of the person at the wheel. See Albritton v. Hill, 190 N. C., 429.\nIn Ulman v. Linderman, 44 N. D., at p. 40 (10 A. L. R., p. 1440), it is said: \u201cThe question is, therefore, squarely presented, upon these allegations, of the liability of the owner for the negligent act of the stranger. If, at the time of the accident, the wife of the defendant were driving tbe car for purposes of tbe owner\u2019s business (and tbe pleasure of tbe family is a business of tbe master), tbe busband would bave been liable for its negligent operation (citing numerous authorities). . . . Is tbe busband still liable, as master or upon principles of agency, where tbe wife, authorized to operate tbe car, permits or directs, in her presence and stead, that tbe car be operated negligently by a stranger, for purposes of tbe business of tbe master ? In such or similar cases a long line of authorities bave held a liability to attach to tbe master. In many cases this bolding is based upon the reasoning that tbe stranger is a mere instrumentality by which tbe servant or agent performs bis duties, a longer arm which tbe servant or agent wields and controls; that tbe master\u2019s business is being performed, therefore, by tbe agent or servant through tbe stranger in question,\u201d citing numerous authorities.\nTbe \u201cfamily purpose\u201d doctrine is recognized in Kentucky. In Thixton v. Palmer, 210 Ky., p. 638, it is held: That where a mother bad allowed her son tbe use of an automobile to take a friend and two girls riding, she would be responsible for injuries resulting from negligence of tbe friend, whom tbe son bad permitted to drive while be rode in the back seat. Annotated in 44 A. L. R., p. 1379.\nIn tbe case of Kayser v. Van Nest, 125 Minn., 277, 146 N. W., 1091, 51 L. R. A. (N. S.), 970, a father kept an automobile for tbe pleasure of bis family. It was usually driven by bis daughter, nineteen years of age. On tbe occasion of tbe accident, while driving she was joined by a party of young people, and she permitted a cousin to drive tbe car. Tbe Court in that case said: \u201cTbe daughter remained in tbe car, and, although not personally operating it, bad not relinquished control over it, nor turned it over to another to use for bis own purposes. It was still being used in furtherance of tbe purpose for which she bad taken it out.\u201d Thixton v. Palmer, supra.\nCardozo, C. J., in Grant v. Knepfer, 245 N. Y., 158, 54 A. L. R., at p. 848-9, says: \u201cTbe statute may be said in a general way to bave brought about tbe same results as bad been attained in some other jurisdiction without reference to any statute by tbe so-called doctrine of 'the family automobile.\u2019 Ibid.; Ferris v. Sterling, 214 N. Y., 249, at p. 252, 108 N. E., 406, Ann. Cas., 1916D, 1161. Only a narrow construction would permit us now to say that an owner placing a car in tbe care of members of bis family to be used for their pleasure or for tbe family business would escape liability if wife or son or daughter should give over tbe wheel to tbe management of a friend. Tbe ruling has been more liberal whenever tbe question has come up,\u201d citing tbe cases heretofore quoted.\nThe question is for tbe first time presented to this Court. Tbe common law is elastic to meet tbe complex problems of tbe age as they arise, but courts should be slow and not enter the realm of legislation. Last year 22,160 people were killed in automobile accidents on the highways of the United States. In North Carolina, the last year, 571 were killed. During the first six months of this year 262 people in North Carolina were killed in automobile accidents, 'or an average of about one and a half a day, while an additional 2,088 were injured. The State total of motor cars on 1 August, 1928, was 440,258. Passenger cars numbered 396,295; trucks 43,963. State average, one motor car to every 6.6 inhabitants.\nHuman life is too cheap and restraint is necessary. The numbers killed and crippled each year are appalling. It is necessary, in reason, for the courts to hold the owners of automobiles, when they turn over an instrumentality of this kind to the family for family use, to strict accountability. This is one of the means to safeguard the public. The head is usually the one of financial responsibility \u2014 at least he is the owner of the instrumentality. Upon the principles cited, consonant with natural justice, he should be held responsible.\nThis principle does not extend to an automobile loaned to another.\nIn Reich v. Cone, 180 N. C., at p. 268, it is said: \u201cWhen a motor car is used hy one to whom it is loaned for his own purposes, no liability attaches to the lender unless, possibly, when the lender knew that the borrower was incompetent, and that injury might occur.\u201d Tyson v. Frutchey, 194 N. C., p. 750.\n2. Is it permissible to admit testimony as to the location of certain glass and blood and also tracks of the automobile on the highway as evidence? We think so. There was sufficient indentification that the tracks of the automobile were made by defendant\u2019s car, and the glass and blood were along the route of the automobile after it struck the boy.\nIn 42 C. J., part section 1023, page 1223, it is said: \u201cEvidence of the physical conditions existing at the scene of the accident or collision is ordinarily admissible.\u201d Kepley v. Kirk, 191 N. C., 690; Mitchell v. Atkins, 192 N. C., 376.\n3. The defendant assigned error that the court below instructed the jury as follows: \u201cYou are instructed as a matter of law that from the evidence in this case the juncture of the State highway No. 50 and the road testified to as the \u2018Riggs\u2019 road or \u2018Green Level\u2019 road constituted intersecting highways within the meaning of the law.\u201d We think this charge correct. All the evidence was to the effect that the Riggs road was a public road. S. v. Haynie, 169 N. C., at p. 282. The wording of the charge was not prejudicial.\nC. S., 2598, in part, is as follows: \u201cThe term \u2018public highway\u2019 or \u2018highways\u2019 shall be construed to mean any public highway, township, county or State road, or any county road, any public street, alley, park, parkway, drive or public place in any city, village or town.\u201d\nPublic Laws 1927, ch. 148, see. 1 (p), 'defines \u201cIntersection\u201d as follows: \u201cThe area embraced within the prolongation of the lateral curb lines or, if none, then the lateral boundary lines of two or more highways which join one another at an angle, whether or not one such highway crosses the other.\u201d Manly v. Abernathy, 167 N. C., 220; Mount Olive v. R. R., 188 N. C., 332; Davis v. Long, 189 N. C., 129; Fowler v. Underwood, 193 N. C., 402.\nWebster\u2019s Dictionary defines the word \u201cIntersect\u201d as having as one of its meaning that of \u201cto cut into,\u201d etc.; \u201cto cut into another,\u201d etc., and the word \u201cIntersection\u201d as meaning geometrically, \u201cthe point or line in which one line or surface cuts into another.\u201d The words \u201cintersecting roads\u201d therefore embrace the junction of roads as well as crossroads. Mapp V. Holland, 138 Va., 519, 122 S. E., 430; Vartanian, Law of Automobiles, Part II, ch. 1, p. 414, note.\nThe injury complained of occurred on 16 March, 1927. The uniform motor vehicle operation act was passed by the General Assembly of 1927 and went into effect on 1 July, 1927. It repealed \u201call laws and clauses of laws in conflict.\u201d The decisions of this Court defining \u201cintersection\u201d prior, are substantially in accord with the definition given by the act.\n. 4. The defendant assigned error that the court below- instructed the jury as follows: \u201cYou are instructed that if a driver of a motor vehicle traverses an intersecting highway at a rate of speed greater than fifteen miles per hour, he does so in violation of law and in such cases would be guilty of negligence per se. You are instructed that a driver\u2019s view is obstructed at intersecting highways when at any time during the last one hundred feet of his approach to such intersection he does not have a clear and uninterrupted view upon all of the highways entering such intersection for a distance of two hundred feet from such intersection.\u201d\nIn Newton v. Texas Co., 180 N. C., at p. 565, it is held: \u201cThe violation of a statute, or an ordinance, is negligence per se, or rather, to speak more accurately, it is itself a distinct wrong in law, and all that is needed to make it an actionable wrong is the essential element of proximate cause, for 'wrong and damage\u2019 constitute a good cause if there be a causal connection between them.\u201d Stultz v. Thomas, 182 N. C., 470; Davis v. Long, supra; Albritton v. Hill, supra.\nC. S., 2618, amended by chapter 272, Public Laws 1925, is as follows: \u201cNo person shall operate a motor vehicle upon the public highways of this State recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, trafile, and use of the highway, or so as to endanger the property or the life or limb of any person: Provided, that no person shall operate a motor vehicle on any public highway, road or street of this State at a rate of speed in excess of: . . . (D) Fifteen miles per hour in traversing an intersection of highways when the driver\u2019s view is obstructed. A driver\u2019s view shall be deemed to be obstructed when at any time during the last one hundred feet of his approach to such intersection he does not have a clear and uninterrupted view upon all of the highways entering such intersection for a distance of two hundred feet from such intersection.\u201d Under the Laws of 1927, ch. 148, supra,, Art. II, sec. 4 (3) changes this and says: \u201cFifteen miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver\u2019s view is obstructed.\u201d This act went into effect after the injury in the present case.\n5. Defendant assigned error that the court instructed the jury as follows: \u201cThe law requires every person operating an auto-mobile upon a public highway to use that degree of care that a reasonably careful person would use under like or similar circumstances to prevent' injury or death to persons on or traveling over, upon or across such highways, and any person so operating an automobile when approaching a pedestrian who is upon the traveled part of any highway, and not upon a sidewalk, and upon approaching an intersecting highway, or a corner in a highway when the operator\u2019s view is obstructed, shall slow down and give-, a timely signal with his bell, horn or other device for signaling, and the failure of any person so operating such motor vehicle so to do is negligence.\u201d\n0. S., 2616, in part, is as follows: \u201cUpon approaching a pedestrian who is upon the traveled part of any highway, and not upon a sidewalk, and upon approaching an intersecting highway or- a curve, or a corner in a highway where the operator\u2019s view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn, or other device for signaling.\u201d The court below charged substantially in the language of the statute.\n6. The defendant assigned error that the court instructed the jury as follows: \u201cYou are instructed that even though the injured party through his own negligence placed himself in a position of peril, he may. recover if the -one who injured him discovers, or by the exercise of ordinary care could have discovered him in time to have avoided the injury. The defendant would not be relieved of liability by reason of the fact that he did not see him, but the law holds him to the responsibility of seeing what he could have seen by keeping a reasonably vigilant and proper lookout. You are instructed that the mere fact that a child runs in front of a moving motor vehicle so' suddenly that the driver had no notice of danger, does not necessarily relieve a defendant from liability. There still remains the question whether the negligent driving of the automobile made it impossible for the driver to avoid the accident after seeing the child, or when by the exercise of reasonable care, such driver could have seen tbe child in time to avoid the injury, there being a greater degree of watchfulness and care required of automobile drivers as to children than adults.\u201d It may be noted that defendant tendered no issue as to contributory negligence.\nIn S. v. Gray, 180 N. C., at p. 701, it is said: \u201cThe vigilance and care required of the operator of an automobile vary in respect to persons of different ages and physical conditions. He must increase his exertions in order to avoid danger to children, whom he may see, or by the exercise of reasonable care should see, on or near the highway. More than ordinary care is required in such cases. Deputy v. Kimmell, 80 S. E. (W. Va.), 919; 8 N. & C. Cases, 369.\u201d\n\u201cChildren, wherever they go, must be expected to act upon childish instincts and impulses, and others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly.\u201d Cooley, C. J., in Power v. Harlaw, 57 Mich., 107; Loughlin v. Penn. R. R. Co., 240 Pa. St. Rep., at p. 179; S. v. Gash, 177 N. C., at p. 598; Hoggard v. R. R., 194 N. C., at p. 259.\nOn the facts and circumstances of the case, we do not think the assignment of error can be sustained.\n7. In Featherstone v. Cotton Mills, 159 N. C., p. 431, it is said: \u201cUnder our decisions the stockholders, officers, or employees of the casualty company would not be impartial or competent jurors to determine the issue, and under all ordinary conditions the questions asked by counsel on the voir dire were not improper. Norris v. Mills, 154 N.. C., 474; Blevins v. Cotton Mills, 150 N. C., 493.\u201d\nIn selecting the jury the following questions were asked the jurors by counsel for the plaintiff, over defendant\u2019s objection:\n\u201cQ. Gentlemen of the jury, as the jury is now constituted, is there any member of the jury that is interested as agent, or otherwise, in any automobile indemnity insurance company?\u201d\nAfter the question was propounded, the court said to the jury: \u201cGentlemen, that has nothing in the world to do with the merits of the case, and should not be regarded, and it is just a general question asked for the information of the counsel, and has nothing to do with the merits of the case.\u201d Defendant\u2019s counsel then moved for a venire de novo upon the ground that counsel for the plaintiff was permitted to make inquiry of the jury as above stated. Motion overruled and defendant excepted. Thereupon the court made the following entry: \u201cThe court finds as a fact that in private conference with counsel before any member of the jury was interrogated it was admitted by counsel for the defendant that the defendant did have indemnity insurance in the Maryland Casualty Company of Baltimore, Maryland, and that Mr. Charles E. Johnson, of Raleigh, is the agent of the company. The court further finds as a fact that counsel for plaintiff propounded the question to the jury in good faith and merely for the purpose of ascertaining whether or not any member of the jury was the representative of or had any interest in the insurance company. The court also finds as a fact that .counsel for the plaintiff stated before the question was asked the jury that they had no information that any member of the jury was the representative of, or had any interest in such indemnity company.\u201d After the jury was empaneled, the defendant\u2019s counsel moved that a juror be withdrawn and mistrial ordered. Motion overruled; defendant excepted.\nIn Luttrell v. Hardin, 193 N. C., at p. 269, it is said: \u201cIt has been repeatedly held that the fact that a defendant in an actionable negligence action carried indemnity insurance could not be shown on the trial. Such evidence is incompetent.\u201d Smith v. Ritch, ante, 72.\nThis principle should be adhered to, but frequently on the trial this fact creeps out in one way or another. The business of indemnity insurance has become, as a matter of common knowledge, a large and increasing one with a vast number of employees. As to whether the court below should, upon motion, order a new trial concerning the conduct of the trial, in matters of this kind, must be left largely to the sound discretion of the court below, within the limitations prescribed by law. Fulcher v. Lumber Co., 191 N. C., p. 408, where the matter is thoroughly discussed. We do not think the assignments of error can be sustained.\nThere are other assignments of error we have not considered, as we do not think them material. No new questions of law. The case has been carefully considered here. The court below gave a clear and thorough charge covering every phase of the law applicable to the facts.\nEvery human aid was rendered the young lad after he was struck by the ear by the women in the car. They are to be commended for their prompt and efficient service to the lad under trying circumstances. The jury have found the facts. In law, we find\nNo error.\nBeogden, J., dissenting.", "type": "majority", "author": "Claeicson, J." } ], "attorneys": [ "Percy J..Olive and J. O. Little for plaintiff.", "Allen & Duncan, Winston & Brassfield, A. A. F. Seawell and Murray Allen for defendant." ], "corrections": "", "head_matter": "THADDEUS GOSS, by His Next Friend, T. R. GOSS, v. WARREN R. WILLIAMS.\n(Filed 24 October, 1928.)\n1. Husband and Wife \u2014 Rights, Duties, and Liabilities \u2014 Liability of Husband fox- Negligence of Wife in Driving \u201cFamily Oar\u201d \u2014 Agency.\nWhere the husband is the owner of an automobile which he permits to be used for family purposes, and while in such use by his wife she permits another to drive it, and remains with such driver on the front seat, and \u25a0 by the negligence of the one driving a child is struck and injured: Held, the negligence of the driver acting under the control and.authority of the wife is the wife\u2019s negligence, and the husband is responsible, in damages for the injury if proximately caused thereby, under the implied agency of the wife, under the \u201cfamily-use\u201d doctrine.\n2. Tidal \u2014 Taking Case ox\u2019 Question from -Jury \u2014 Nonsuit.\nDefendant\u2019s motion as of nonsuit upon the evidence will be denied if there is any sufficient evidence, testified to by either the plaintiff\u2019s or defendant\u2019s witnesses, circumstantial or otherwise, viewed in the light most favorable to the plaintiff, to take the issue to the jury for determination. C. S\u201e 567.\n3. Appeal and Error \u2014 Nature and Gi*ounds for Apiiellate Jui-isdiction.\nThe jurisdiction of the Supreme Court on appeal is confined to matters of law or legal inference, properly presented, appearing in the record. Const, Art. IV, sec. 8.\n4. Highways \u2014 Regulation and Use for Travel \u2014 Use of Highway and Law of the Road \u2014 Evidence.\nWhere damages are sought for the negligent driving of an automobile on the wrong side of the highway in violation of statute, evidence of this fact may be shown upon tbe trial by tbe tracks made by tbe automobile at tbe place, broken glass from tbe reflectors, and tbe blood of tbe person injured in tbe collision.\n5. Same \u2014 Intersections\u2014Negligence.\nUnder tbe provisions of C. S., 2598, as amended by chapter 148, section 1 (p), Public Laws of 1927, where one public highway joins another but does not cross it, tbe point where they join is an intersection of public highways within tbe meaning of the statute.\n6. Same \u2014 Statutes.\nUnder tbe provisions of C. S., 2616, 2618, amended by Public Laws 1925, it is negligence per se for one to drive his automobile more than fifteen miles per hour in traversing an intersection of highways when the driver\u2019s view is obstructed for one hundred feet therefrom, and damages may be recovered for its violation when the proximate cause of the injury: Held, the amendment of 1927, reducing the distance from 100 feet to 50 feet has no retroactive or continuing effect.\n7. Same \u2014 Degree of Care \u2014 Children.\nOne driving an automobile upon a highway is not relieved of liability by the fact alone that a seven-year-old child ran before his automobile suddenly and without previous indication, for the law requires him to use due care, especially in regard to children, to avoid the injury between the time he saw, or by the exercise of proper care, he should have seen the child, and the time of the injury.\n8. Jury \u2014 Competency of Jurors, Challenges and Objections \u2014 Challenges to the Favor.\nWhere a defendant in a personal-injury suit carries indemnity insurance, in passing upon the jury it is not error for the trial judge to permit the defendant\u2019s attorney to ask for his information only, whether the juror challenged was an agent or representative of the indemnity company, the question being restricted to this purpose openly by the court, and the refusal of the trial court to grant a new trial upon this ground is not reversible error.\nBrogden, J., dissenting.\nAppeal by defendant from Sinclair, J., at November Term, 1927, of Wake.\nNo error.\nTbe issues submitted to tbe jury and tbeir answers thereto were as follows:\n\u201c1. Was plaintiff injured by tbe negligence of defendant, as alleged? Answer: Yes.\n\u201c2. Wbat damage, if any, is plaintiff entitled to recover? Answer: $3,000.\u201d\nTbis is an action for actionable negligence brought by Tbaddeus Goss, a minor, through bis father, T. R. Goss, his next friend, against the defendant Warren R. Williams.\nThe plaintiff contends that the defendant, Warren R. Williams, lives in Sanford, N. O., and was the owner of a Buick sedan No. 35560. That bis family consists of bimself, bis wife and five children. On Wednesday, 16 March, 1927, defendant\u2019s wife, Mrs. Warren R. Williams, drove the car to Raleigh, N. 0., with Mrs. J. F. Foster, Mrs. 0. L. Williams, and Mrs. W. R. Makepeace. They went to Raleigh to shop. On the return trip they left Raleigh about 5 o\u2019clock, and Mrs. W. R. Make-peace drove the car, with Mrs. Warren R. Williams\u2019 permission, who sat on the front seat with her and the others sitting on the back seat. About two miles south of Apex, on the way to Sanford, the car Mrs. W. R. Makepeace was driving struck the plaintiff, Thaddeus Goss, a minor between 7 and 8 years old, and seriously and permanently injured him. That Mrs. W. R. Makepeace was driving the car about 80 to 35 miles an hour. The highway, route No. 50, at the place of the injury to the boy, runs practically north and south, and was about 40 feet wide, and straight along where the injury occurred going towards Sanford for a long distance. That the Riggs road was a public road and intersects with route No. 50, entering from the west. The Carl Barker house was on the right-hand side of highway No. 50, going south and Thaddeus Goss\u2019 father\u2019s house on the left-hand side, and was reached by a pathway up an embankment, just opposite the Riggs public road, which intersects with highway No. 50; that Thaddeus Goss was with his sister, Mary Goss. She stopped at the Barker house to talk to Mrs. Barker, being in the edge of the Riggs public road; that Thaddeus walked by her to cross route No. 50 and go up the pathway to his father\u2019s house. When he left her he was traveling at a slow gait. Mary Goss testified: \u201cI heard no horn blow\u201d; that he had to cross the highway, which was about 40 feet wide, and he had reached within 3 feet of the other side of route No. 50, and was within about the same distance of the path, when he was suddenly, without any warning, struck by defendant\u2019s automobile; that the left-hand light of the car driven by Mrs. Makepeace was turned around and the glass over it was \u201cbursted out,\u201d indicating that the left of the car struck the boy, and the car was on the left instead of being on the right of the center of the road; that the track of the car indicated that it was on the left of the road some 100 feet going south before it struck the boy; that a pile of glass, as much as a handful, was on the road 3 or 4 feet from the embankment on the left-hand side of route No. 50 going towards Sanford. The glass was about in front of the pathway. There was blood also on the left-hand side of the road going towards Sanford, where the glass was. The blood was along the road 23 steps in a southern direction from the glass; that after being struck the boy was carried by the car twenty-three steps southward, where he was dropped off, and then the car turned to the right-hand side of the road and stopped, some 100 feet below the Riggs public road where it intersects with route No. 50; that the car was being very rapidly driven and left the center of route No. 50 and turned to the left 100 feet from where it struck him. The car, at the speed it was running could have been stopped, and defendant\u2019s witness testified was stopped, within 40 to 50 feet. The path leading to the Goss house was almost directly opposite the intersection of the Riggs public road with route No. 50.\nOne of plaintiff\u2019s witnesses testified in regard to tracking the car, and said: \u201cI noticed a car that came around about 100 feet up the road coming over on the left-hand side and struck something and turned and went back to the right-hand side of the road.\u201d\nDefendant\u2019s contentions were to the contrary. The ear was being carefully driven on the right-hand side of the road going towards Sanford. The brakes were in good order. The glass on the left-hand light was not broken. The Riggs public, road was obscured by an embankment. That Thaddeus Goss, the plaintiff, ran down an embankment, 3 or 4 feet high \u2014 was running. \u201cA little boy ran out of the edge of the embankment, just like he came out of the air, and he was running, and ran right off in front .of the car. . . ' . When he emerged from behind the embankment and he did not stop running. He just ran down the embankment and in front of the car.\u201d\nThe defendant in the:-court below made numerous exceptions and assignments of error. The material facts and assignments of error will be considered in the opinion.\nPercy J..Olive and J. O. Little for plaintiff.\nAllen & Duncan, Winston & Brassfield, A. A. F. Seawell and Murray Allen for defendant." }, "file_name": "0213-01", "first_page_order": 293, "last_page_order": 303 }