#### GUY E. WALLER v. L. M. HIPP and THE QUAKER STATE OIL REFINING COMPANY. INC.

(Filed 10 April, 1935.)

1. Automobiles D b—

A person riding in an automobile upon tbe invitation of tbe driver and tbe driver’s employer, wbo is injured by tbe negligence of tbe driver in tbe performance of bis duties, may recover of botb tbe driver and tbe employer.

2. Master and Servant D b—

An employer is liable for negligence of tbe employee causing injury to a third person when tbe employee is acting witbin tbe scope of bis employment and about bis employer’s business.

3. Automobiles C c: C h — Evidence that skidding was caused by wom-out tires and excessive speed under the circumstances held sufficient for jury.

Evidence that the car in which plaintiff was riding as a guest skidded on tbe wet paved highway and that tbe driver explained tbe skidding was caused by worn-out tires, and that, upon plaintiff’s suggestion, tbe driver slowed bis speed to 35 or 37 miles per hour, and that thereafter at this speed tbe car skidded again, resulting in tbe injury in suit *is held*sufficient to be submitted to tbe jury on tbe question of negligence, there being evidence from which the jury could find that the skidding was caused by driving tbe car with worn tires at a speed, which although not ordinarily unlawful, was unlawful under all the circumstances shown by the evidence. O. S., 2621 (45).

4. Automobiles G f: Negligence A b—

■ Whether tbe conduct of the driver of an automobile in turning tbe steering wheel from one side to tbe other in an attempt to obtain control of tbe car after it bad skidded on the highway was that of a prudent man *held*a question for tbe jury and not for the court.

5. Appeal and Error J a—

Tbe refusal of tbe trial court to set aside tbe verdict on the ground that excessive damages were awarded is not reviewable.

*118Appeal by defendants from *Devin, J.,*at October Term, 1934, of Nash.

No error.

This is an action to-recover of the defendants damages for personal injuries suffered by the plaintiff, and caused, as alleged in the complaint, by the negligence of the defendant L. M. Hipp, an employee of the defendant the Quaker State Oil Refining Company, Inc., while he was driving an automobile which was owned by the defendant the Quaker State Oil Refining Company, Inc., in the performance of his duties as its employee, and in which the plaintiff was riding as a passenger.

In their answer the defendants admit that the plaintiff was injured as alleged in the complaint, and that at the time he was injured he was riding as a passenger in an automobile owned by the defendant the Quaker State Oil “Refining Company, Inc., and driven by its employee, the defendant L. M. Hipp, in the performance of his duties. They deny that plaintiff’s injuries were caused by the negligence of the defendant L. M. Hipp, as alleged in the complaint.

At the trial evidence was introduced by the plaintiff; no evidence was offered by the defendants or by either of them.

The issues submitted to the jury were answered as follows:

“1. Was the plaintiff injured by the negligence of the defendants, as alleged in the complaint? Answer: 'Yes.’

“2. What damages, if any, is the plaintiff entitled to recover of the defendants? Answer:‘$-12,500.’”

From judgment that plaintiff recover of the defendants the sum of $12,500, with interest and costs, the defendants appealed to the Supreme Court, assigning as error (1) the refusal of the court to allow their motion for judgment as of nonsuit; (2) an instruction of the court to the jury, in its charge; and (3) the refusal of the court to allow defendants’ motion to-' set aside the verdict on the ground that the damages assessed by the jury are excessive.

*Cooley & Bone and Alexander & Gold for plaintiff.*

*Burgess, Balcer & Allen for defendants.*

CONNOR, J.

In view of the admissions in the pleadings in this action, the only question involved in the first issue submitted to the jury was whether the plaintiff’s injuries were caused by the negligence of the defendant L. M. Hipp, as alleged in the answer.

It is alleged in the complaint, and admitted in the answer, that at the time the plaintiff was injured he was riding in an automobile which was owned by the defendant the Quaker State Oil Refining Company, Inc., and driven by the defendant L. M. Hipp in the performance of his duties as its employee; and that the plaintiff was riding in the automo*119bile upon the invitation of the defendants, and for the purpose of aiding the defendant L. M. Hipp in the performance of his duties as an employee of the defendant the Quaker State Oil Refining Company, Inc.

On these admissions in their answer, both the defendants are liable to the plaintiff for the damages which he sustained as the result of his injuries, if his injuries were caused by the negligence of the defendant L. M. Hipp*, as alleged in the complaint. It is elementary law that the employer is responsible for the negligence of his employee which results in injury to a third person, when the employee is acting within the scope of his employment, and about his employer’s business. See *Martin v. Bus Line,*197 N. C., 720, 150 S. E., 501.

The evidence at the trial tended to show that as the plaintiff and the defendant L. M. Hipp were riding in the automobile, on a State highway between the town of Fountain and the town of Earmville, at a speed of 35 to 37 miles an hour, the automobile side-slipped or skidded, and that the defendant L. M. Hipp, the driver, attempted to control the automobile by turning the steering wheel from his right to his left, and *vice versa,*with the result that the automobile “zig-zagged” across the highway until it went off the highway and down an embankment, with the result that both the plaintiff and the defendant L. „M. Hipp were injured. The evidence tended to show further that the highway was wet and slippery, and that the tires on the automobile were worn and slick. The plaintiff testified as follows:

“The road between Pinetops and Earmville is of material commonly used in highway construction, and is paved. The road was damp, due to the mist which had fallen during the day on it. ¥e had trouble between Fountain and Earmville. A few miles out of Fountain, the automobile side-slipped. We had been driving at a speed of 40 to 42 miles per hour. I said: ’Mr. Hipp, why does this car side-slip when we are running no faster than we are?’ He replied, ’The tires are worn out.’ I said, ’Why don’t you put on new tires ?’ He said, ’I intended to do so, but the district manager of the company told me to keep down expenses.’ He said he was going to slip- new tires on the automobile, one at a time. I told him that he had better slow down. He did so. We were running at a speed of 35 to 37 miles per hour when the automobile side-slipped and skidded. Mr. Hipp was not able to right the automobile with the steering wheel.”

There was no evidence which tended to show that the plaintiff knew that the tires on the automobile were worn and slick until his conversation with the defendant L. M. Hipp, almost immediately before the accident.

The evidence in this case was properly submitted to the jury as tending to show that the plaintiff was injured by the negligence of the de*120fendant L. M. Hipp. Tbe mere fact tbat tbe automobile side-slipped or skidded was not in itself evidence of its negligent operation by tbe defendant. *Springs v. Doll,*197 N. C., 240, 148 S. E., 251. But in this case, as in *Butner v. Whitlow,*201 N. C., 749, 161 S. E., 389, there was evidence from wbicb tbe jury could find tbat tbe skidding of tbe automobile was tbe result of tbe negligence of tbe defendant in driving an automobile with tires wbicb be knew were worn out and slick, on a highway wbicb was wet and slippery, at a rate of speed wbicb, although not ordinarily unlawful, was unlawful under all tbe circumstances shown by tbe evidence. C. S., 2621 (45).

There was no error in tbe refusal of tbe court to give tbe special instruction as prayed by tbe defendants. Whether or not tbe conduct of tbe defendant L. M. Hipp, after tbe automobile bad skidded on tbe highway, in attempting to control it, was tbat of a prudent man was for tbe jury and not for tbe court to determine. Tbe instruction, as properly modified by tbe court, was given in tbe charge to tbe jury. *Newman v. Queen City Coach Company,*205 N. C., 26, 169 S. E., 808. There was nothing in tbe charge to tbe jury of which tbe defendants can justly complain. It was full and correct.

Tbe refusal of tbe court to set aside tbe verdict on tbe ground tbat tbe damages assessed by tbe jury are excessive is not reviewable by this Court. *Lane v. R. R.,*192 N. C., 287, 134 S. E., 855. Tbe evidence with respect to tbe plaintiff’s injuries, and bis resultant damages, was sufficient to justify tbe answer to tbe second issue.

Tbe assignments of error on this appeal cannot be sustained. Tbe judgment is affirmed.

No error.