#### GEORGE MILES v. J. K. McIVER.

(Filed 17 February, 1932.)

Negligence D c — Evidence of negligence in this case held sufficient to he submitted to the jury-

Evidence tending to show that the owner of an automobile when changing a tire upon the highway offered to pay a colored boy to help him and told the boy to get under the ear and jack it up at the axle, that the jack used was defective and that when the owner pulled off the tire sought to be changed the jack under the car slipped, causing the automobile to fall on the colored boy to his injury is *Held,*sufficient upon the issue of actionable negligence of the owner of the car.

Appeal by defendant from *Devin, J.,*and a jury, at December Term, 1931, of MaetiN.'

No error.

This is an action for actionable negligence, brought by plaintiff against defendant. The defendant denied negligence and set up a plea of contributory negligence.

*286Tbe defendant testified, in part: “I am tbe plaintiff in this action, and live near Hobgood. I was injured on 8 April, 1930. . . . Was burt on tbe highway. I was on my way home and passed tbe defendant, bis ear was standing on tbe road and I approached bim and said, Ut looks like you are in trouble. Can I do anything for you?’ He bad a flat tire. He asked me to help bim and said be would pay me. I told bim I would try to do what be told me. He told me to try to jack up tbe frame and be bad two jacks and I jacked up tbe frame and when I jacked up tbe wheel it fell on my chest. I was under the automobile when it fell on me. I have helped jack up automobiles, but I bad never been under one. He asked me to go under tbe car and jack up tbe axle so be could get tbe wheel off. He bad two jacks. I jacked one under tbe frame of tbe car and went under there to jack it up so be could get tbe wheel off and it fell. Mr. Mclver was standing on the outside when it fell. I jacked up tbe frame before I went under tbe car and then went under there to jack up tbe axle so be could get tbe wheel off. It was tbe rear right wheel. Tbe axle fell right across my. breast. It moved somehow or other'. I was under the rear of tbe car right under tbe axle. I was not under tbe middle of tbe axle and not right at tbe end of it. Mr. Mclver was on tbe outside. He got it off of me as quick as be could. Tbe car was on tbe jack under tbe frame when I went under it. I went under tbe car and placed tbe jack under tbe axle and jacked it some more. There was one jack on tbe outside and one under tbe car. Mr. Mclver got tbe wheel off while I was .under tbe car. Q. State whether or not that is what made tbe car fall on you ? A. I was under there and I think that is bow come it to fall. Tbe car fell when be pulled tbe wheel off. I was badly burt. (Cross-examination.) When be pulled it off it fell on me. . . . Q. You knew before you got under there that if tbe thing fell down you would get burt? A. I didn’t have any idea it would fall. Q. You don’t say Mr. Mclver thought it would fall? A. I don’t think be did. Q. How bard do you say be pulled on tbe wheel? A. I don’t know. Hard enough to pull it off. . . . One jack was not as good as tbe other. Tbe sorry jack was tbe one under tbe axle, under there where I was. I think that is tbe one I bad. *I had the, one that wouldn't half hold under there. I didn't lenow it wouldn’t half hold until I was under there.*... I kept on jacking it up. Q. Knowing it might fall down? A. If be bad not snatched tbe wheel off it would not have moved. Q. You say you don’t know bow bard be was pulling it? A. No, sir. He snatched it bard enough to get it off.”

Dr. E. E. Pittman testified, in part: “I know George Miles. I treated bim for a chest injury. He came to me fifteen or twenty minutes after *287tbe accident occurred. I did not bave access to an X-ray, but I found possibly three or four ribs broken. . . . He spat up blood for tbe time I was taking care of him and I saw him myself expectorate blood. Tbe injury was caused from tbe force or weight of tbe car falling on him. Q. State whether or not be was injured internally ? . A. I know be bad broken ribs and from tbe fact that be was expectorating blood, we would expect some internal injury.”

Sheriff Roebuck testified: “I know George Miles. Know bis general character and reputation. It is as good as tbe average darkey.”

John Hines testified: “I know George Miles. Have known him 8 or 10 years. He lives close to me. I know bis general character and reputation. It is good.”

Tbe issues submitted to tbe jury and their. answers thereto, were as follows:

“1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? A. Yes.

2. What damage,, if any, is plaintiff entitled to recover therefor ? A. $1,510.”

*Hugh*G. *Horton for plaintiff.*

*Jos. W. Bailey for defendant.*

Pee Oueiam.

Tbe defendant introduced no evidence, and at tbe close of plaintiff’s evidence made a motion for judgment as in case of nonsuit. O. S., 567. Tbe motion was overruled and in this we can see no error.

We can see no evidence on this record of contributory negligence on tbe part of plaintiff. Tbe exceptions and assignments of error on tbe part of defendant cannot be sustained. Tbe answer of Sheriff Roebuck “it is as good as tbe average darkey,” is not prejudicial. A witness, Hines, testified stronger “I know bis general character and reputation, it is good.” We see nothing objectionable in tbe charge of tbe court below, it fully complies with G. S., 564.

The defendánt argued tbe case and filed an able brief, followed by counter-brief. On this record bis contentions cannot be sustained. Tbe evidence on tbe part of plaintiff we think fully sufficient to be submitted to tbe jury. It was a question of fact for a jury, and in law we find

No error.