Moore v. Crocker , 264 N.C. 233 ( 1965 )

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141 S.E.2d 307 (1965) 264 N.C. 233
Everett McKinley MOORE
v.
Paul CROCKER.
No. 456.
Supreme Court of North Carolina.
April 7, 1965.
Charles F. Lambeth, Jr., Thomasville, for plaintiff appellant.

Walser, Brinkley, Walser & McGirt, Lexington, for defendant appellee.

PER CURIAM.

There was plenary evidence that plaintiff was not present when the collision occurred; that Small had borrowed plaintiff's Chevrolet; and that, when the collision occurred, Small was using the car for his own personal purposes.

In our view, there was sufficient evidence to support findings that the collision and plaintiff's damage were proximately caused by the negligence of defendant and also by the negligence of Small. Whether the testimony of Small, plaintiff's witness, discloses as a matter of law that negligence on his part was a proximate cause need not be decided. Assuming Small's negligence was a proximate cause, unless defendant's allegations of agency are established, such negligence of Small is not a bar to plaintiff's right to recover. By reason of G.S. § 20-71.1, the agency issue, the burden of proof being on defendant, was for determination by the jury under *308 proper instructions. In this connection, see Whiteside v. McCarson, 250 N.C. 673, 110 S.E.2d 295.

The judgment of nonsuit is reversed and the cause is remanded for trial on all issues raised by the pleadings.

Reversed.