Honea v. Bradford

251 S.E.2d 720 (1979)

39 N.C. App. 652

Duane Robert HONEA and Robert K. Honea v. J. H. BRADFORD, Jr., Mary M. Bradford and Bobby Bradford.

No. 7814DC259.

Court of Appeals of North Carolina.

February 6, 1979.

*722 Powe, Porter, Alphin & Wichard by N. A. Ciompi, Durham, for plaintiffs-appellees.

E. C. Harris, Durham, for defendants-appellants.

ARNOLD, Judge.

It is the sole contention of each defendant that the trial court erred in failing to grant each defendant's motion for directed verdict and for judgment notwithstanding the verdict.

The minor defendant argues that the only allegations of negligence refer to his use of the motor bike upon a public road in violation of the statutory provisions, and that it has not been proved that Trevor Circle, where the accident occurred, is in fact a public road. This interpretation of the case ignores the allegations of negligence which do not rely on statutory violations or a finding that Trevor Circle is a public street, specifically: (1) failure to keep a proper lookout, (2) failure to keep the motor vehicle under proper control, (3) operating the motor vehicle at excessive speed, (4) failure to take adequate evasive maneuvers in order to avoid colliding with the plaintiff, and (5) operating a motor vehicle with defective brakes. While violation of a statute may be negligence per se, see 9 Strong's N.C. Index 3d, Negligence § 1.3, certainly it is not necessary for one to violate a statute in order to be negligent. "A person who enters upon an active course of conduct is under positive duty to exercise ordinary care to protect others from harm, and a violation of this duty is negligence." Id. § 1.1 at 344. In the case at bar, the plaintiff testified: "Bobby turned over into my lane. I moved out of his way and he came over again. I went off to the side of the road and I got over as far as I could as there was a two foot bank and then he hit me. . . ." There is sufficient evidence to support a finding that the defendant was operating his motor bike negligently. Defendant's motions for directed verdict and judgment notwithstanding the verdict were properly denied.

Defendant James Bradford, Bobby's father, also contends that a directed verdict or judgment notwithstanding the verdict should have been granted in his favor. We disagree. While ordinarily a parent is not liable for the torts of his minor child, Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974), a parent may be liable for his independent negligence if he permits his child to possess a dangerous instrumentality or one that becomes dangerous because of a child's immaturity or lack of judgment, such as an automobile, Taylor v. Stewart, 172 N.C. 203, 90 S.E. 134 (1916), or a forklift, Anderson v. Butler, supra.

In the case before us the evidence, considered as it must be in the light most favorable to the plaintiff, Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969), shows that the Honda Trail 50, a mini bike, ridden by the minor defendant was a "small motorcycle," with a 49 cc gas-operated engine, an automatic three-speed transmission, and a seat that could carry more than one. A jury could find that such a vehicle becomes a dangerous instrumentality when entrusted to a child who lacks judgment or is immature.

Moreover, we find that there was sufficient evidence to permit the jury to find that the adult defendant had negligently entrusted the vehicle to his minor son. There is evidence that the motor bike was a gift from defendant to his 12-year-old son, that defendant knew that his son had ridden it many times in the yard, that defendant *723 was aware that his son is "below average compared to a normal child," that defendant had showed his son how to operate the bike but had given him no instructions in safety or the rules of the road, that defendant "did not keep the key or lock the bike" and that the key was left on a cabinet in the house "with no one responsible really." After the collision defendant told the plaintiff's father that "he would not let [Bobby] ride on the street anymore." We find that this is evidence of independent negligence by the adult defendant sufficient to avoid a directed verdict and take the case to the jury.

No error.

PARKER and WEBB, JJ., concur.