Miller v. Jones

DeviN, J.,

dissenting: I do not think there was sufficient evidence of negligence on the part of the defendants to warrant submission of the ease to the jury, and therefore the judgment of nonsuit was properly entered and should be affirmed.

The record discloses that at the conclusion of the plaintiff’s evidence defendants’ motion for judgment of nonsuit was allowed. The trial court’s reasons for his action are not stated. Whatever ground in support of this ruling was stated in appellee’s brief is immaterial, for the only question presented to us is the validity of the judgment of nonsuit on the record before us. If the plaintiff offered competent evidence of actionable negligence on the part of these defendants he was entitled to go to the jury; otherwise not.

It may be conceded that the immunity from personal liability accorded public officials engaged in governmental duties involving judgment and discretion does not relieve a mere employee from liability for damages ,for an injury occasioned by his negligence or other tort of which he is personally guilty, some fault or failure in the manner of doing the work, outside of and beyond the mere doing of the work for which he is employed, as illustrated in Lewis v. Hunter, 212 N. C., 504 , 193 S. E., 814 .

But here I think there was a failure of proof. The plaintiff’s testimony does not make out a case of negligence. The evidence was brief. Only two witnesses testified, the plaintiff and another. Defendants’ motion for nonsuit having been allowed, they offered no evidence. Plaintiff’s testimony described the extent of the damage to his goods from dust and dirt raised by the sweeper used in preparing the State Highway in front of his store for hard-surfacing. It was testified the sweeper was being operated by the defendants who were employees of the State Highway Commission and as such engaged at the time on this work. There is no evidence that the use of this machine in sweeping the sur *791 face of the highway was not the proper and approved method of doing this work. The only wrongful act suggested is that defendants failed to give plaintiff notice of the approach of the sweeper to his store. But these defendants were mere employees, under orders presumably both as to.doing the work and as to the time. It was during working hours. There was no evidence that it was these defendants' duty to notify plaintiff, or that defendants knew of the conditions in plaintiff’s store, or that they did anything that was not necessary to be done in preparing the highway for treatment. The plaintiff testified, “they were sweeping the roadbed out, getting ready to put the treatment on the road.” As employees defendants were doing the work for which they were employed. The superintendent or engineer could not be held liable for giving the order. Nor should the employees be held liable for obeying. Only in the event of showing some negligence, some failure of duty to the plaintiff, in the manner of doing the work, could the employee be held liable.

The plaintiff’s allegation in his complaint that the defendants failed to use any protection to keep the dust from being blown on defendants’ store is not supported by any evidence.

In my opinion the evidence offered at the trial, which appears of record, was insufficient to show negligence on the part of the defendants, and the judgment of nonsuit should be affirmed.