#### NATHAN OWENS v. G. B. HILL and W. M. SMATHERS.

(Filed 2 March, 1938.)

1. Automobiles § 18a' — Evidence held not to show that condition of truck *or*fact that it was overloaded proximately caused injury.

Plaintiff employee’s allegation and evidence tended to show that he was injured when he fell from a stationary truck as he was attempting to replace a sack of corn which had fallen off. There was no evidence that the condition of the truck or the fact that it was overloaded contributed to or proximately caused him to fall. *Held:*Plaintiff’s allegation and evidence that the truck was overloaded and in disrepair are immaterial.

2. Appeal and Error § 37d—

The verdict of the jury on conflicting evidence is conclusive in the absence of error of law in the trial.

3. Appeal and Error § 47a—

A new trial for newly discovered evidence will not be allowed in the Supreme Court when the evidence relied on is immaterial in determining the ultimate rights of the parties.

Appeal by plaintiff from *Johnston, J.,*at November Civil Term, 1937, of BuNoombe: No error.

*203Tbis is a civil action instituted by tbe plaintiff, an employee of tbe defendant G. B. Hill, to recover for personal injuries sustained on 25 May, 1936. Tbe plaintiff, accompanied by bis employer, was driving a truck loaded witb corn from tbe farm of tbe defendant Hill in Henderson County to Asbeville, N. 0. One of tbe sacks of corn fell off tbe truck. Tbe plaintiff stopped and tbe defendant Hill directed bim to go back and get tbe sack of corn and replace it on tbe truck. After putting tbe sack of corn on tbe truck tbe plaintiff climbed up on tbe left running board and fender of tbe truck for tbe purpose of so adjusting tbe sack of corn tbat it would not again fall off. He slipped and fell just as tbe defendant W. M. Smatbers was driving bis car by tbe truck. He was bit and injured by tbe car of tbe defendant Smatbers. From tbe fall and bis contact witb tbe car of tbe defendant Smatbers be suffered serious injury.

Plaintiff alleges tbat tbe defendant Hill was negligent in tbat be bad said'truck overloaded; tbat be bad tbe sacks of corn piled on tbe truck bigber than tbe side boards of tbe same and refused to permit tbe plaintiff to tie said sacks down so tbat tbey would not fall off, altbougb tbe plaintiff requested to be permitted to do so; tbat said defendant failed to furnisb tbe plaintiff witb sufficient belp to handle said sack of corn, wbicb was too heavy for one man; tbat tbe said truck ivas not properly equipped and was not in proper condition to haul heavy loads; and tbat tbe defendant Hill ordered bim to climb up on tbe running board and fender of tbe car to adjust tbe sack of corn wbicb bad fallen off.

He alleges tbat after be bad fallen and was lying in tbe middle of tbe road tbe defendant Smatbers carelessly and negligently failed to properly observe and see tbe plaintiff in bis place of danger and peril, failed to keep bis automobile under proper control, failed to give proper warning, and failed to stop bis car before it struck tbe plaintiff.

Tbe plaintiff alleges tbat tbe negligent acts of tbe two defendants were concurrent and proximately caused plaintiff’s injuries.

Tbe defendant Hill alleged and offered evidence tending to show tbat be did not order tbe plaintiff to climb up on tbe fender of tbe automobile, and tbe plaintiff did so without bis knowledge or direction, and tbat act of tbe plaintiff was voluntary and unnecessary, as tbe sack of corn bad already been replaced on tbe truck. Tbe defendant Smatbers alleged and offered evidence tending to show tbat tbe plaintiff fell off tbe truck just as be, Smatbers, was driving by, and tbat tbe plaintiff fell against tbe Smatbers car at a time and tinder circumstances wbicb made it impossible for tbe defendant Smatbers to avoid tbe collision.

Tbe issues of negligence as to each of tbe defendants submitted to tbe jury were answered in the negative. From judgment thereon in favor of tbe defendants tbe plaintiff appealed.

*204
      *Cecil C. Jachson for plaintiff, appellant.*

*J. JS. Shipman for defendant G. B. Hill, appellee.*

*Harlcins, Van Winkle & Walton for defendant W. M. Smothers, appellee.*

Per Curiam.

Tbis cause is one essentially of fact, and tbe facts have been found by the jury adverse to the plaintiff, under a charge which fully presented the evidence and the law arising thereon to the jury.

The negligence, if any, of the defendant Hill prior to the time the truck stopped on the highway is immaterial. The evidence fails to disclose that either, the condition of the truck, or the fact that it was overloaded, in any manner contributed to or proximately caused the fall of the plaintiff. The only material allegation of negligence on the evidence in this case against the defendant Hill is the allegation that said defendant directed the plaintiff to climb up on the fender to adjust the corn. The jury has found the facts on this allegation adversely to the plaintiff. The jury has likewise found that the plaintiff failed to sustain his allegations of negligence as to the defendant Smathers.

We have examined all of the assignments of error of the plaintiff and find in none of .them sufficient cause for disturbing the verdict and judgment.

Motion for new trial for newly discovered evidence has been filed. The newly discovered evidence relied upon by the plaintiff would tend to impeach and falsify the testimony of witnesses as to circumstances under which the truck was loaded, and to show that the defendant Hill was in fact present at the time the truck was loaded. This evidence, under the facts in this case, would in any event be immaterial. In the judgment below there is

No error.