Eugene S. ANDERSON, II, by his Guardian Ad Litem, et al.
v.
Cornelius BUTLER, Jr., and wife, Phyllis H. Butler.
No. 49.
Supreme Court of North Carolina.
February 25, 1974.*588 Dees, Johnson, Tart, Giles & Tedder by J. Sam Johnson, Jr., Greensboro, for plaintiffs appellants.
Harry Rockwell, John R. Hughes, Greensboro, and T. Worth Coltrane, Asheboro, for defendants appellees.
BRANCH, Justice.
Initially we are confronted with plaintiffs' contention that defendants are not entitled to present as an assignment of error the denial of their Motions for directed verdicts upon appeal since they assigned no grounds for the Motions in the trial court.
Rule 50(a) requires that "A motion for a directed verdict shall state the specific grounds therefor."
The Federal Courts have construed the identical provisions in their Rule 50(a) of the Federal Rules to mean that the requirement is mandatory. Capital Transportation Company v. Compton, 187 F.2d 844 (8th Cir. 1951); Atlantic Greyhound Corp. v. McDonald, 125 F.2d 849 (4th Cir. 1942); Duncan v. Montgomery Ward & Co., 108 F.2d 848 (8th Cir. 1940); Wright & Miller, Federal Practice and Procedure: Civil § 2533. Our Court of Appeals has adopted the Federal construction. Wheeler v. Denton, 9 N.C.App. 167, 175 S.E.2d 769. The question has not been directly presented to this Court, but the Federal construction of the rule was approved in a dictum statement in Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1.
We note that some of the Federal Courts have held that the rule is sufficiently complied with when the moving party makes his position clear by oral explanation, Dowell, Inc. v. Jowers, 166 F.2d 214 (5th Cir. 1948), and when there is but a single issue, a Motion for directed verdict properly presents to the appellate courts the question of the sufficiency of the evidence to carry the case to the jury. Rochester Civic Theatre, Inc. v. Ramsay, 368 F.2d 748 (8th Cir. 1966).
The purpose of the rule is to apprise the Court and the adverse parties of movants' grounds for the motion.
Professor James E. Sizemore's excellent discussion of the general scope and philosophy of the New Rules in 5 Wake Forest Intramural Law Review 1, at p. 37, (1969) includes the following:
". . . If movant states the specific grounds of the motion, plaintiff may be able to meet the defect with proof, and his case would be complete. If movant was not required to state the specific ground, the defect might be the cause of a later judgment notwithstanding the verdict when it is too late for plaintiff to supply the proof. Failure to state specific grounds for the motion is sufficient reason to deny the motion. . ."
We hold that the provision in Rule 50(a) that a motion for a directed verdict shall state the specific grounds therefor is mandatory. However, the courts need not inflexibly enforce the rule when the grounds for the motion are apparent to the court and the parties.
In instant case, it is obvious that the motion challenged the sufficiency of the evidence to carry the case to the jury. There was no misapprehension on the part *589 of the trial judge or the adverse parties as to the grounds for the motion. We, therefore, elect to review the denial of defendants' motions for directed verdicts.
We turn to the principal question presented by this appeal, that is, whether the evidence was sufficient to withstand defendants' motions for directed verdict.
All of the record evidence shows that the minor plaintiff was on defendants' premises as an invited guest and was therefore a licensee. Murrell v. Handley, 245 N.C. 559, 96 S.E.2d 717.
If the owner, while the licensee is upon the premises exercising due care for his own safety, is actively negligent in the management of his property or business, as a result of which the licensee is subjected to increased danger, the owner will be liable for injuries sustained as a result of such active or affirmative negligence. Hood v. Coach Company, 249 N.C. 534, 107 S.E.2d 154; Wagoner v. R. R., 238 N.C. 162, 77 S.E.2d 701. We think that a higher measure of care is required when a duty is owed to young children. In the case of Greer v. Lumber Co., 161 N.C. 144, 76 S.E. 725, this Court quoted with approval from Holmes v. R. R., 207 Mo. 149, 105 S.W. 624, the following:
". . . `But common experience tells us that a child may be too young and immature to observe the care necessary to his own preservation, and therefore, when a person comes in contact with such a child, if its youth and immaturity are obvious, he is chargeable with knowledge of that fact and he cannot indulge the presumption that the child will do what is necessary to avoid an impending danger. Therefore, one seeing such a child in such a position is guilty of negligence if he does not take into account the facts that it is a child, and regulate his own conduct accordingly. . .'"
See also, 57 Am.Jur.2d Negligence, § 124
Ordinarily a parent is not liable for the torts of his minor child. Griffin v. Pancoast, 257 N.C. 52, 125 S.E.2d 310; Langford v. Shu, 258 N.C. 135, 128 S.E.2d 210. However, the parent may be liable if a tort is committed while the minor child is acting as the servant or agent of the parent and the negligent act was the proximate cause of an injury to another. Johnson v. Lamb, 273 N.C. 701, 161 S.E.2d 131; Hawes v. Haynes, 219 N.C. 535, 14 S.E.2d 503; Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096. And a parent may be liable because of his independent negligence if he permits his child to possess a dangerous instrumentality which causes injury to another. Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474; Lane v. Chatham, 251 N.C. 400, 111 S.E.2d 598; Bowen v. Mewborn, 218 N.C. 423, 11 S.E.2d 372. Likewise, when a parent entrusts to an immature child an instrumentality, such as an automobile, which is not inherently dangerous but which becomes dangerous because of the child's immaturity or lack of judgment, the parent may incur liability for injuries or damages to others resulting from the use of the instrumentality by the child. In both of the latter instances, liability arises from the parents' independent negligence and not from the imputed negligence of the child. The test of responsibility in all of these types of cases, as in all negligence actions, is whether an injurious result could have been foreseen by a person of ordinary prudence. Linville v. Nissen, supra; 57 Am.Jur.2d, Negligence, §§ 110 and 118.
It is our opinion, and we hold, that a forklift is not a dangerous instrumentality per se. Rather, like an automobile, it is a dangerous instrumentality when placed in the hands of a person who lacks the capacity to operate it safely. Taylor v. Stewart, 172 N.C. 203, 90 S.E. 134; Linville v. Nissen, supra; Miles v. Harrison, 115 Ga.App. 143, 154 S.E.2d 377; 57 Am. Jur.2d, Negligence § 110.
*590 A motion for a directed verdict by a defendant in a jury case presents the question of whether, as a matter of law, the evidence is sufficient to require submission of the case to the jury. Bowen v. Constructors Equipment Rental Co., 283 N.C. 395, 196 S.E.2d 789; Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174, 188 S.E.2d 441. The motion presents substantially the same question as to sufficiency of evidence as did a motion for involuntary nonsuit under former G.S. § 1-183. It is axiomatic that on a motion for directed verdict, plaintiff's evidence is to be taken as true and all of the evidence must be considered in the light most favorable to plaintiff, giving him the benefit of every fact and inference of fact pertaining to the issues, which may be reasonably deduced from the evidence. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47.
Decision of the question before us is not complicated by the question of the minor plaintiff's contributory negligence since a child between the ages of seven and fourteen years may not be held guilty of contributory negligence as a matter of law. Bell v. Page, 271 N.C. 396, 156 S.E.2d 711; Welch v. Jenkins, 271 N.C. 138, 155 S.E.2d 763.
Whether there was sufficient evidence to withstand the motions of directed verdict by each defendant must be considered in light of the above-stated rules.
We first consider the motion for a directed verdict by the male defendant, Cornelius Butler, Jr.
It was alleged in the Complaint and admitted in the Answer that the male defendant owned the forklift. There was sufficient evidence to permit, but not require, the jury to find that the male defendant entrusted to his eleven year old son Donald the forklift knowing at that time that the nine year old minor plaintiff was on the premises by invitation, and without giving any warnings or precautionary instructions to the child operator or to the visiting child concerning the operation or use of the machinery.
We are aware of the evidence concerning Donald's conpetency in the manual operation of the forklift. However, a distinction must be drawn between the manual skill and the maturity of judgment of any eleven year old child.
". . . [I]n all negligence cases, the issue in the last analysis is whether the parent exercised reasonable care under all the circumstances . . ." Langford v. Shu, supra.
When considered in the light most favorable to the plaintiff, we think that there was sufficient evidence to permit the jury to decide whether under the circumstances of this case Cornelius Butler, Jr. exercised reasonable care when he placed the forklift in charge of his child of tender years.
We note, parenthetically, that the record discloses plenary evidence to have justified submission of the case to the jury on the theory of Respondeat superior as to defendant Cornelius Butler, Jr.
We next consider the motion for a directed verdict by defendant Phyllis H. Butler.
It is established by the pleadings that the forklift belonged to defendant, Cornelius Butler, Jr. When considered in the light most favorable to plaintiffs, the evidence does not support a reasonable inference that the feme defendant had any part in placing the machine in Donald's possession or that he at any time operated it as her servant, by her direction or under her control. However, there is substantial evidence to the effect that prior to the accident, the defendant Phyllis H. Butler, spent the entire day of 11 April 1970 engaged in her household duties, completely removed from the activities outside the dwelling.
*591 We hold that when considered in the light most favorable to the plaintiffs, there was not sufficient evidence to carry the case to the jury as to the defendant Phyllis H. Butler.
Defects in the charge, if any, are not before this Court by proper exception or assignment of error.
This cause is remanded to the Court of Appeals with direction that it be returned to the Superior Court of Guilford County, Greensboro Division, for entry of judgment in accordance with this opinion.
As to the defendant, Cornelius Butler, Jr., the decision of the Court of Appeals is reversed.
As to the defendant, Phyllis H. Butler, the decision of the Court of Appeals is affirmed.