#### R. W. CHADWICK v. ELIZABETH T. O’BRYAN and ALLAN D. O’BRYAN.

(Filed 10 January, 1934.)

Civil actioN, before Grady, J., at June Term, 1933, of Oaetebet.

It is alleged in the complaint that the defendant, Allan D. O’Bryan, was a minor living with his mother, the defendant, Elizabeth T. O’Bryan, who “was the owner of an automobile, and that said automobile was obtained, kept and maintained by the said Elizabeth T. O’Bryan for the comfort, pleasure and convenience of herself and her *845family, . . . and at tbe dates hereinafter alleged tbe said automobile was being- operated by tbe defendant, Allan D. O’Bryan, with tbe knowledge, consent and special permission of bis mother, Elizabeth T. O’Bryan.” Tbe answer of Elizabeth T. O’Bryan admitted “that this defendant, on tbe date mentioned, owned an automobile, and that her son, Allan D. O’Bryan, used tbe same with her consent.” Tbe evidence tended to show that on 2 January, 1932, tbe plaintiff bad driven bis horse and cart into tbe town-of Beaufort. He stopped at tbe curbing at Thomas Sadler’s to deliver some borrowed clothes, and while bis cart was so standing tbe automobile of defendant, driven by her son, Allan O’Bryan, collided with tbe cart, breaking tbe same to pieces and throwing tbe plaintiff to tbe ground, inflicting as tbe plaintiff contended, serious and permanent injuries.

Tbe plaintiff had no light upon bis cart and there was some contradiction in tbe evidence as to whether it was dark at tbe time. Plaintiff said that it was “about dusk or it may have been a little after sundown. ... It was just dusky a little.” Another witness for plaintiff who was a merchant and waiting on customers at tbe time, said: “I could see bis cart well enough. I hadn’t turned on tbe lights in my store.” Another witness for plaintiff testified: “I judge it was a few minutes after five o’clock. I could see all right.” Another witness for plaintiff said: “It was not dark, . . . and I bad not put on my lights.” There was evidence tending to show that tbe car was being driven at tbe rate of thirty-five or forty miles an hour, and that tbe car of defendant “stopped about seventy-five to eighty yards from where tbe cart was.”

Issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of plaintiff.

From judgment upon tbe verdict, awarding $3,000 damages, tbe defendant, Elizabeth O’Bryan, appealed.

O. R. Wheatley for plaintiff.

Julius F. Duncan for defendants.

Pee Cueiam.

There was sufficient evidence of negligence to be submitted to tbe jury. Tbe defendant requested certain instructions, which were refused by tbe trial judge, but an examination of tbe charge discloses that tbe substance of such instructions was submitted to tbe jury. Indeed, an examination of tbe record leaves tbe impression that tbe merit of tbe controversy involved an issue of fact which has been determined adversely to tbe defendant.

Affirmed.