Carter v. Montgomery

Decision Date19 November 1956
Docket NumberNo. 5-1079,5-1079
Citation296 S.W.2d 442,226 Ark. 989
PartiesJack CARTER, Individually and as Next Friend of David Carter, Appellants, v. Wiley MONTGOMERY et al., Appellees.
CourtArkansas Supreme Court

Mann & McCulloch, Forrest City, for appellants.

Jack P. West, Forrest City, for appellees.

MILLWEE, Justice.

This action arose out of a collision between a bicycle being ridden by a 13-year old boy and an automobile driven by another boy of the same age on the streets of Forrest City, Arkansas on the night of October 31, 1955.

According to the proof Wiley Montgomery owned a 1929 Model Ford automobile his father had purchased for him. On the night in question he was accompanied by two other young boys in driving the car South on Division street while David Carter was riding his bicycle North on said street as the two vehicles approached the intersection of Division and Mississippi streets. The Montgomery boy was driving at a moderate rate of speed and upon reaching the intersection made a normal left turn off Division street into Mississippi street. As the car entered Mississippi street and had 'about straightened up' the bicycle ridden by young Carter collided with the rear end or right rear side of the car knocking Carter and his bicycle several feet into Mississippi street. The Montgomery boy did not see the bicycle before the collision but a companion did and after some discussion as to just what had struck the car they returned to the scene of the accident after having driven several blocks down Mississippi street. David Carter could not remember anything that happened from the time he left a school house several minutes before the collision until some time after the accident. The car was equipped with a horn, adequate brakes and headlights that were burning but there was no headlight on the bicycle.

In the action brought by appellant, Jack Carter, individually and as next friend of his son, David Carter, against appellees, Wiley and James Montgomery, for personal injuries allegedly suffered by David Carter as a result of the collision, the trial court submitted special interrogatories to the jury pursuant to the Comparative Negligence Law (Act 191 of 1955). In response thereto, the jury found that the collision occurred without any negligence on the part of the appellees, Wiley Montgomery and James Montgomery, his father.

The principal contentions for reversal relate to the trial court's refusal to give Instructions Nos. 1 and 5 requested by appellants which read as follows:

'No. 1. You are instructed that, according to the uncontradicted evidence in this case, the defendant, Wiley Montgomery, was under the age of 14 years; and you are further instructed that under the laws of Arkansas, when a parent permits his child to drive a motor vehicle when that child is under the age of 14 years, the parent is guilty of negligence per se--that is, the parent becomes negligent by the mere fact of the act of permitting the under-age child to drive the vehicle.

'No. 5. The plaintiffs request the Court to instruct the jury that if they find from the evidence that the defendant Wiley Montgomery, was under the age of fourteen years at the time this collision took place, and if they find that the defendant, Wiley Montgomery, was driving the motor vehicle involved, in violation of Section 75-309 of the Arkansas Statutes, then such finding should be treated by them as negligence per se on the part of the defendant, Wiley Montgomery.'

In refusing the two requested instructions the trial court instructed the jury on his own motion as follows:

'Section 75-309 of the Statutes of Arkansas is as follows: 'Persons not to be licensed. The department shall not issue any license hereunder: 1. To any person, as an operator, who is under the age of 16 years, except that the department may issue a restricted license as hereinafter provided to any person who is at least 14 years of age.'

'In view of that statute and in view of the fact that it is undisputed in the evidence in the record in this case that the defendant, Wiley Montgomery, is under the age of 14 years and is the son of James Montgomery, and the further fact that it is undisputed in this record that James Montgomery, permitted the defendant, Wiley Montgomery, to drive the vehicle that night, any negligence you find on the part of the defendant Wiley Montgomery, will be imputed to the father, James Montgomery, under the law, and James Montgomery will be liable for any negligence and damages caused by his son, Wiley Montgomery.'

As we understand appellants' contention it is that James Montgomery was not only guilty of negligence per se in permitting his boy to operate the car in violation of the statute, but was thereby rendered absolutely liable for any damages suffered by appellants irrespective of whether such negligence was the proximate cause, or one of the proximate causes, of the injury. In this connection it is further argued that if the parent is liable per se then the same liability should be imposed upon the child himself. Appellants rely on the recent case of Richardson v. Donaldson, 220 Ark. 173, 246 S.W.2d 551, where we held that the parent of a child 16 years of age would not be liable for the child's negligence merely because he entrusted her with the car. In reaching that conclusion we discussed Hoke v. Atlantic Greyhound Corp., 226 N.C. 692, 40 S.E.2d 345, in which the court held a violation of a statute similar to Ark.Stats. § 75-309, constituted negligence per se on the part of the parent. We then said in the Donaldson case [220 Ark. 173, 246 S.W.2d 553]: 'In the case at bar, if Eloise Richardson had been under fourteen years of age (the prohibited age in this State), then her father, in allowing her to drive his truck, would have been guilty of negligence per se. * * *' While this statement was dictum in that case, we adhere to it.

It follows that James Montgomery was guilty of negligence per se in the instant case and appellants' Requested Instruction No. 1 was correct as an abstract statement of the law and as far as it went. But the instruction, and others requested by appellants, ignored the question of...

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9 cases
  • D.L. by Friederichs v. Huebner
    • United States
    • Wisconsin Supreme Court
    • February 3, 1983
    ...negligence is not a defense. See, e.g., Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 N.W. 887, 889 (1920); Carter v. Montgomery, 226 Ark. 989, 296 S.W.2d 442, 445 (1957); Boyer v. Johnson, 360 So.2d 1164, 1166-68 (La.1978); Vincent v. Rigg & Sons, Inc., 30 N.Y.2d 406, 334 N.Y.S.2d 380, 285 ......
  • Hortica-Florists' Mut. Ins. Co. v. Pittman Nursery Corp.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 9, 2013
    ...“a causal connection between the injury received and the violation of the statutory prohibition or mandate.” Carter v. Montgomery, 226 Ark. 989, 296 S.W.2d 442, 445 (1956). 16. Because we affirm the district court's judgment on the bad faith and negligence claims, we do not address Hortica'......
  • Smith v. Henson
    • United States
    • Tennessee Supreme Court
    • September 4, 1964
    ...liable for the negligence of a borrower where such fact has no causal connection with the injury or damage. Carter v. Montgomery, 226 Ark. 989, 296 S.W.2d 442 (1957), 5A Am.Jur., Automobiles and Traffic, Section 582, 137 A.L.R. Then, too, it must be borne in mind that Mrs. Kendrick was not ......
  • Christenson v. Felton, 5-1119
    • United States
    • Arkansas Supreme Court
    • November 19, 1956
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