Bell Ex Rel. Martin v. Brueggemyer

242 S.E.2d 392 (1978) 35 N.C. App. 658

Randall Keith BELL, by his guardian ad litem George Martin and Frank Bell
v.
Harold Walter BRUEGGEMYER

No. 7722SC354.

Court of Appeals of North Carolina.

March 21, 1978. Certiorari Denied May 8, 1978.

Hall, Booker, Scales & Cleland by Roy G. Hall, Jr., Winston-Salem, for plaintiffs-appellants.

Hudson, Petree, Stockton, Stockton & Robinson by J. Robert Elster and Robert J. Lawing, Winston-Salem, for defendant-appellee.

Certiorari Denied by Supreme Court May 8, 1978.

WEBB, Judge.

We hold there is sufficient evidence in this case for it to be submitted to the jury.

We note at the outset that the minor plaintiff being between the age of 7 and 14 at the time of the accident could not be contributorily negligent as a matter of law. Weeks v. Barnard, 265 N.C. 339, 143 S.E.2d 809 (1965). For this reason, a directed verdict for defendant should not have been granted on this ground. The defendant cites cases which, in a well-reasoned argument, he contends say that a 13-year-old child can be held contributorily negligent as a matter of law. We believe the case law in this State is such that we cannot accept the defendant's argument.

This brings us to the question of whether there is enough evidence of defendant's negligence that the issue should be submitted to the jury. In Webb v. Felton, 266 N.C. 707, 147 S.E.2d 219 (1966), a 15-year-old boy was struck while turning his bicycle in front of a bus approaching from his rear. The bus had accelerated without its horn being sounded and had moved toward the center line to pass. The court held:

"The failure of the bus driver to blow his horn in apt time before attempting to pass the boy on his bicycle . . . was in violation of G.S. 20-149(b), and evidence of negligence." 266 N.C., at 710, 147 S.E.2d at 221.

We are unable to distinguish this case from Webb.

Other evidence which we believe was sufficient to overcome the motion for a directed verdict is (1) the defendant attempted to pass at an intersection in violation of G.S. 20-150(c), Teachey v. Woolard, 16 N.C.App. 249, 191 S.E.2d 903 (1972); (2) the defendant failed to drive on the right side of the road, Snellings v. Roberts, 12 N.C.App. 476, 183 S.E.2d 872 (1971); (3) the defendant failed to keep a vigilant lookout, Wainwright v. Miller, 259 N.C. 379, 130 S.E.2d 652 (1963), and (4) failed to keep his vehicle under control and bring it to a halt so as to avoid the collision, Wainwright v. Miller, supra.

The defendant further contends that plaintiff, Frank Bell, is barred from recovery by his own negligence in allowing his son to ride his bicycle on the highway without proper safety instructions. In this case, the evidence showed that the minor plaintiff's father and mother were separated and the minor was living with his mother. There is no evidence which shows the father gave his son permission or knew that he would ride his bicycle on Highway 601 on that day. The father testified that he had told his son that when he was riding a bicycle he should "watch for cars and be careful," "to watch for cars" and to "keep his eyes behind him and in front of him too in case a car slipped up on him." On this evidence we hold that plaintiff, Frank Bell, is not barred by his own contributory negligence.

It is held that this case be

Reversed and remanded.

BRITT and HEDRICK, JJ., concur.