Hagar Ex Rel. Hagar v. Red Band Co. ( 1933 )

Each of the above entitled actions was instituted by the plaintiff therein to recover damages for injuries suffered by Max E. Hagar, the eleven-year-old son of C. E. Hagar, and alleged to have been caused by the negligence of the defendants, or their employees.

By consent, the actions were consolidated for trial of the issues raised by the pleadings. Evidence was offered by both the plaintiffs and the defendants.

From judgment as of nonsuit, at the close of all the evidence, in each action, the plaintiff therein appealed to the Superior Court. On 12 August, 1931, Max E. Hagar, the eleven-year-old son of C. E. Hagar, while passing a truck owned by the defendant, Red Band Company, Incorporated, and standing on a highway in the town of Thomasville, N.C. was struck in the left eye by a small piece of metal, with the result that his eye was painfully and seriously injured. It was subsequently removed by a surgeon to whom he was taken for treatment. The injuries suffered by Max E. Hagar, are permanent. His father, C. E. Hagar, was required to pay out large sums of money for medical and surgical treatment of his son's injuries. Both plaintiffs have sustained damages resulting from the injuries suffered by Max E. Hagar.

The truck was standing on the highway, with its front wheels near the curb, and its rear wheels about eleven feet from the curb. One of the rear wheels had suddenly failed to turn, and the driver of the truck had called an employee of the defendant, Arthur Black, to his aid. This employee and the driver of the truck undertook to remove the wheel for the purpose of repairing it. While they were at work, Max E. Hagar, who was walking on the highway, approached the truck. The highway is forty feet wide. When he was within five or six feet of the truck, he was struck in the eye by a small piece of metal, and cried out: "There is something in my eye. I cannot see." Neither of the employees of the defendants had seen him as he approached the truck.

There was evidence tending to show that the piece of metal, which struck the boy in his eye, flew from the iron or steel bar, which the driver of the truck was holding against the wheel, and which the employee of the defendant, Arthur Black, was striking with a sledge hammer. There was no evidence, however, tending to show that either the bar or the hammer was defective, or that the employees of the defendants were negligent in doing their work. All the evidence showed that the injuries which Max E. Hagar suffered, were the result of an accident, for which neither of the employees of the defendants was responsible. The driver did not park the automobile, voluntarily, on the highway; he was unable to move it because of the defective wheel. Neither he nor the employee of the defendant, Arthur Black, knew or had reason to anticipate that a pedestrian on the highway would approach the truck, while they were at work repairing the wheel.

There was no error in the judgment dismissing the action as of nonsuit.Miller v. Mfg. Co., 202 N.C. 254, 162 S.E. 925. The judgment is

Affirmed.