Mercer v. Crocker

ARNOLD, Judge. The plaintiff appeals from a directed verdict. The question on appeal is whether the evidence, considered in the light most favorable to the plaintiff, is sufficient to present a question for the jury. See Bowen v. Gardner, 275 N.C. 363, 168 S.E. 2d 47 (1969); Watt v. Crews, 261 N.C. 143, 134 S.E. 2d 199 (1964). We hold that it is. The defendants alleged in their motion for directed verdict that Darrin Mercer was contributorily negligent. Yet, Darrin was thirteen years of age on 28 July 1980. He thus benefits from the rule that a person between the ages of seven and fourteen is presumed to be incapable of contributory negligence and may not be held contributorily negligent as a matter of law. See Golden v. Register, 50 N.C. App. 650, 653, 274 S.E. 2d 892, 894 (1981). The issue of whether he was capable of contributory negligence was one for the jury, and should not have been the basis of a directed verdict. See Hamilton v. McCash, 257 N.C. 611, 619, 127 S.E. 2d — 636 — 214, 219 (1962). The case Edwards v. Edwards, 3 N.C. App. 215, 164 S.E. 2d 383 (1968), relied on by defendants, is distinguishable because the plaintiff there was fourteen years of age. We next consider the question whether the directed verdict was proper on the issue of defendants’ negligence. The testimony of Darrin Mercer shows that Donnie Crocker drove the truck with no tailgate along a paved road at 45 miles per hour, then slowed to approximately five miles per hour, and then speeded up without warning. The testimony shows further that as a result of the truck’s unexpected acceleration, Darrin Mercer was thrown off the truck. Darrin testified that he did not jump off the truck or dangle his feet off the tailgate, although there is other evidence that he did dangle his feet off the tailgate, and that his feet may have caught beneath the truck. Considering the evidence in the light most favorable to the plaintiff, however, we conclude that there is evidence that the manner in which the defendant Donnie Crocker operated the truck caused or contributed to Darrin’s fall. This, combined with the evidence of the lack of a tailgate, is sufficient to take the case to the jury on the question of whether Donnie Crocker’s operation of the truck was negligent. The defendant Roger Crocker admitted that he was the owner of the truck being operated by his brother Donnie Crocker, and that Donnie Crocker was driving it with his permission. The defendant Roger Crocker admitted that he and his brother worked each other’s farms and used each other’s employees. Further, he admitted that they used each other’s trucks to pick up their employees, including the Mercer brothers. Roger Crocker’s admission that he was the owner of the truck being operated by his brother, and that his brother was operating it with his consent to pick up the Mercer brothers, by virtue of G.S. 20-71.1, was sufficient to carry the case to the jury on the question of the legal responsibility of defendant Roger Crocker for operation of the truck by his brother Donnie Crocker. Kellogg v. Thomas, 244 N.C. 722, 731, 94 S.E. 2d 903, 910 (1956). We reverse the directed verdict as to both defendants and remand for new trial. Reversed and remanded. Judges WELLS and COZORT concur.