Sutton v. . Lyons , 156 N.C. 3 ( 1911 )

This is an action to recover damages for personal injury. The plaintiff alleges that he was injured by the negligence of the defendant on 7 August, 1906, While working at her mill, and that the negligence consisted in a defect in the machinery. The defendant denies negligence, and also denies that she was the owner of the mill or that she operated it.

The defendant admits in her answer that the mill is located on her land, and that it was engaged in sawing some of the timber on the land, but says that it has not been in operation for twelve months. The defendant further alleges that the plaintiff was a trespasser in going upon said premises, and that he was there contrary to the express orders and directions of the defendant.

It was in evidence that W. J. Tate managed the mill, and for the purpose of showing that he was agent of the defendant Lyon, the plaintiff offered in evidence the tax list of the plaintiff for 1906, signed "W. J. Tate, agent," which was excluded, and the plaintiff excepted.

There was some evidence of negligence, and that this was the cause of the plaintiff's injury, but his Honor, being of opinion that there was no evidence that the defendant Lyon was the owner of the mill and operated it, entered a judgment of nonsuit, on motion of the defendant, and the plaintiff excepted and appealed. (5) After stating the case: In our opinion, there was evidence fit to be submitted to the jury. It is not conclusive in its nature, and may be weakened or strengthened, when all the facts are developed.

The admission that she is the owner of the land on which the mill is located is some evidence that she is the owner of the mill. If affixed to the soil it would be a part of the land, nothing else appearing, and if not, and it was personalty, the fact that it is on her land is evidence of possession, and evidence of the possession of personalty is evidence of title, in the absence of other proof. There is also evidence that the defendant was exercising dominion over the property, as she says she had given direction for the plaintiff to stay off the premises.

The circumstances that the mill "is situated" on the land, and "has not been in operation during the past twelve months," is entitled to some weight, as ordinarily valuable property, not in use, is not left so long on the land of another.

If there is evidence that the defendant is the owner of the mill on her land, and sawing her timber, this could be considered by the jury on the question of the operation of the mill.

"Where the plaintiff has suffered an injury from the negligent management of a vehicle, such as a boat, car or carriage, it is sufficientprima facie evidence that the negligence was imputable to the defendant to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant's servant. It lies with the defendant to show that the person in charge was not his servant, leaving him to show, if he can, that the property was not under his control at the time, and that the accident was occasioned by the fault of a stranger, an independent contractor or other person, for whose negligence the owner would not be answerable. 1 Sherm. and Redf. Neg., 71. Any other rule, especially where persons are dealing with corporations, which can act only through agents and servants, would render it almost impossible for a plaintiff to recover for injuries sustained by defective machinery or negligent use of machinery." Midgette v. Mfg. Co., 150 N.C. 341.

The abstract of taxes was not admissible in evidence. It was (6) offered to show that Tate was the agent of the defendant, but it amounted to no more than a declaration, and an agency cannot be proved in this way.

"That an agency must be proved aliunde the declarations of the alleged agent is elementary law, and this is true both as to the establishment of the agency and the nature and extent of the authority." West v. GroceryCo., 138 N.C. 168. It may, however, be established by the testimony of the agent under oath. Machine Co. v. Seago, 128 N.C. 160. The judgment of nonsuit is

Reversed.

Cited: Embler v. Lumber Co., 167 N.C. 460; Allen v. R. R., 170 N.C. 334.