Gates v. Pendleton

SLOANE, J.

The only question on this appeal is in fixing the liability for damages to plaintiff for injuries suffered in an automobile accident.

The plaintiff was run over and seriously injured by the reckless negligence of the driver of an automobile owned by

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the defendant, C. W. Pendleton, Jr., and in which C. W. Pendleton, Sr., was a passenger.

It is alleged that the driver at the time of the accident was in the employ of Pendleton, Jr., and under the direction and in the immediate service of Pendleton, Sr.

At the conclusion of plaintiff’s evidence the trial court granted a motion for nonsuit as to both defendants. It is claimed by appellant that no grounds for the nonsuit were specified in the motion, but it sufficiently appears that the motion was submitted on the insufficiency of the evidence.

At any rate, no prejudice can have resulted from any failure to more specifically state the grounds of the motion. Plaintiff had introduced all his evidence and submitted his case, and the only point at all in controversy was as to whether both, or either of the respondents here, were liable for the negligence of the driver of the automobile.

The trial court granted the motion for nonsuit.

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Upon such a motion the evidence must be interpreted most strongly against the defendant, and unless the evidence for plaintiff is so weak as not to be capable of sustaining a decision in his favor, the judgment must be reversed. The uncontradicted evidence bearing upon this point was that the senior Pendleton, with a number of other gentlemen, had been invited to a dinner tendered them by a mutual friend. The place of entertainment was at some distance away and the host had informed Pendleton, Sr., that if he had a friend with an automobile who would bring him and two or three of the guests who were to accompany him, he could invite the automobile provider along also as a guest. The testimony of Pendleton, Sr., in this particular was: “Why, General Last [the host] suggested that if I knew of anyone who had a car who could take a part of his party down to the place where we were going he would invite him along as a guest. . . . I .told him that my son [C. W. Pendleton, Jr.] had a car, and, while he was away, he was expected home early in the morning, the day on which the excursion was fixed, and I would ask him to take me down.” In pursuance of this arrangement Pendleton, Sr., sent word to his son by one Clarence Toll, who afterward was the driver at the time of the accident. Toll was a clerk in the law office of Pendleton, Jr., and sometimes drove members of the family, including Pendleton, Sr., in his employer’s automobile.