WALKER, J., dissenting. The plaintiff sues to recover for the death of his child, who was run over and killed by an automobile belonging to the defendant J. W. Stewart. At the time the car was being operated by James *Page 254 Stewart, the son of the said J. W. Stewart, a lad of 13 years of age. A colored chauffeur, who had been sent out with the car by the owner, was sitting beside the lad.
His Honor charged the jury that under the laws of North Carolina it was a misdemeanor for a person under the age of 16 to drive an automobile upon any highway or public street, and that it is a circumstance from which the jury may infer negligence, and that it does not necessarily follow that the jury shall conclude it was negligence, but that it is a circumstance to go to the jury. In this his Honor erred. He should have instructed the jury that it is negligence per se for the defendant James Stewart to have driven the machine in violation of the statute law of the State. Zogier v.Southern Express Co., 89 S.E. 44; Paul v. R. R., 170 N.C. 231; Ledbetterv. English, 166 N.C. 125.
It does not follow, however, that the defendant is liable in damages, for the plaintiff must go further and satisfy the jury by a (205) preponderance of the evidence of the fact that such negligence was the proximate cause of the death of the child. This question of proximate cause has been much debated, and a very helpful and enlightening opinion upon the subject has been written by Mr. Justice Allen inPaul v. R. R., supra.
Where the facts are all admitted, and only one inference may be drawn from them, the Court will declare whether an act was the proximate cause of an injury or not. But that is rarely the case, and, as is said by Mr.Justice Strong in R. R. v. Kellogg, 94 U.S. 469: "What is proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact in view of the circumstances of fact attending it."
It is impossible, upon the evidence in this case, to say as a matter of law that the fact that the defendant James Stewart was driving the automobile in violation of law was or was not the proximate cause of the intestate's death. The circumstances surrounding the injury are such as to forbid it.
It is contended and there is evidence that the defendant James was driving the automobile at a rapid rate of speed and in violation of the city ordinance at the time he turned the corner. There is also evidence from which a jury may infer that a competent and careful chauffeur of maturer years might have seen the child before the machine struck it and in time to stop. The evidence shows that the defendant James did not see the child until his attention was called to it by the colored chauffeur, and that then the machine was practically on the child, for he was between the guard and the wheel.
Taking all of these circumstances into consideration, the question of proximate cause must be submitted to the jury. If they should find *Page 255 that death of the plaintiff's intestate was an unavoidable accident, which a prudent chauffeur, authorized by law to run a machine, could not by the exercise of reasonable care have avoided, then the defendants were not liable; but if they should find from all the evidence that the proximate cause of the intestate's death was the fast driving and lack of attention and due care upon the part of the 13-year-old boy, driving the machine in violation of law, then he would be liable.
We come now to consider the liability of the defendant J. W. Stewart, the father of James.
A parent is not ordinarily liable for the torts of his minor son done without his knowledge and consent. We, therefore, held in Linville v.Nissen, 162 N.C. 96, that the parent was not liable in that case, because all the evidence showed that his son took the machine out of the garage without the father's consent, but against his express instructions. In that case, however, this Court said: "We would not be understood, however, as holding that the father would not be liable if he (206) should place his automobile in charge of a child of tender years any more than if he would intrust an unruly horse to him. But in such case the liability arises from the father's negligence, and not from the imputed negligence of the child. This is too well settled to need discussion."
There is evidence in this case which tends to prove that the defendant J. W. Stewart, father of James, habitually permitted his son to operate his automobiles since the latter was 10 years of age; that the father had ridden with the son repeatedly and permitted him to carry other members of the family out in the machine. It is true that on this occasion he sent a colored chauffeur with the machine to execute a certain commission, and that the son got in the machine en route and the chauffeur turned over the operation of it to him.
The chauffeur had a right to assume that the father approved of this; it was the latter's habit to allow his son to run his machine in direct violation of the statute of the State, which has been in force since 1 April, 1913. This was negligence upon the part of the father, and from these facts the jury may well infer that on the occasion when the plaintiff's intestate was killed the son was driving the machine with the consent of the father.
A somewhat similar case has been decided in South Carolina, where it is held that a person who provided an automobile for the pleasure of his family, which his son was authorized by him to operate, such person is held liable for his son's negligence when driving the car for the pleasure of himself and his friends. Davis v. Littlefield, 97 S.C. 171.
It is generally held where a master unknowingly retains incompetent servants in his employ and to do his bidding, he becomes liable for their *Page 256 negligence. Haines v. Parkersburg Ry. Co., 84 S.E. 923. Upon the same principle, where a father permits his minor child to operate his automobile upon the highways and public streets in violation of the statute it is negligence upon the part of the father, and he becomes responsible for those injuries which are the result of such violation of law.
New trial.