Patterson v. Weatherspoon

• Decision Date: 16 June 1976
• Docket Number: No. 7610SC171,7610SC171
• Citation: 29 N.C.App. 711,225 S.E.2d 634
• Parties: Mark Willis PATTERSON, by his guardian ad litem, F. L. Patterson, Plaintiff, v. W. H. WEATHERSPOON, Defendant.
• Court: North Carolina Court of Appeals

Page 634

225 S.E.2d 634

29 N.C.App. 711

Mark Willis PATTERSON, by his guardian ad litem, F. L Patterson, Plaintiff, v. W. H. WEATHERSPOON, Defendant.

No. 7610SC171.

Court of Appeals of North Carolina.

June 16, 1976.

Reynolds & Howard by E. Cader Howard, Raleigh, for plaintiff-appellant.

Smith, Anderson, Blount & Mitchell by Samuel G. Thompson and Michael E. Weddington, Raleigh, for defendant-appellee.

VAUGHN, Judge.

We will quote all of the testimony relevant to the question of negligence.

The minor plaintiff testified as follows:

'On that day I saw Will Weatherspoon and his father, W. H. Weatherspoon, hitting golf balls in a vacant lot in the neighborhood where we all lived. It was about 7:30 in the evening and still daylight.

I rode my bicycle onto the vacant lot and Mr. Weatherspoon saw me. I knew Mr. Weatherspoon and his son, Will, and I spoke to Will and rode my bicycle over to where he was. I got off my bicycle at a point ten or fifteen feet away from Will and walked over to him. Will at that time was hitting some golf balls and Mr. Weatherspoon was on the other side of the lot about forty feet away.

I walked up to Will and stood behind him. Will swung his putter back and hit me in the left eye. I screamed and Mr. Weatherspoon ran over to me and picked me up and took me to his house which was the second house away from the vacant lot.'

Defendant was called as an adverse witness for plaintiff and testified as follows:

'I am the father of W. H. Weatherspoon, Jr. who was six years old on June 21, 1970. My son and Mark Patterson had occasionally played together prior to June 21, 1970.

Prior to June 21, 1970, my son had received no golf lessons from a professional or semi-professional, but had received instruction from me. I had instructed my son only in the use of a putter because in my judgment at his then age of six he was incapable of swinging any club longer than a putter. I had on occasion been with my son to a commercial 'putt-putt' course in Raleigh and at the beach and had shown him how to tap the ball into the hole and how to hold the putter. His training and experience was limited to that of a light stroke on the ball.

On June 21, 1970, I took my son to a vacant lot near our home so that we could be together as father and son with him putting golf balls and me chipping golf balls with a nine iron. I handed my son a putter to use. We arrived at the lot at about 7:15 p.m. and it was still daylight. Mark Patterson came on the lot after we had arrived and begun putting and chipping. My son was putting balls on a clay surface where we had prepared a little depression that resembled a golf cup so that he might tap the balls into this depression. My son had putted two or three balls before Mark arrived. I was about 25 to 30 feet away from my son when Mark arrived. My son had the putter in his hands when Mark arrived. Mark rode his bicycle onto the lot and approached us and we both spoke to him. My son was under my supervision and control the entire time that we were on the lot with Mark that day.

I had reason to believe that my son would respond to any instructions I gave him. I considered my son to be a well-behaved child and I had had no problems with his discipline and had no reason to believe that he would not respond to any directions or instructions that I gave him.

I recall that Mark Patterson sustained an injury to his left eye on June 21, 1970. I did not see the accident occur. I heard Mark scream and I ran over to him and noticed immediately that there had been a very severe injury to the left eye . .

I was standing about 25 or 30 feet away from the boys when the accident occurred, at approximately the same location as when Mark first arrived at the lot. I did not take the putter from my son when Mark arrived at the lot.

When I first gave my son the putter on that date I showed him where to putt, how to choke up on the putter and tap the ball into the depression in the clay. I did not give my son any specific instructions on the use of the putter after Mark arrived at the lot. The putter was an adult sized putter--about like a yardstick. I did not give Mark any instructions as to where he should stand or what he should do while my son was stroking the ball with the putter.

CROSS EXAMINATION:

Prior to June 21, 1970, my son had had numerous exposures to a golf club. I am an occasional golfer and there were golf clubs in my home. We had watched golf on television and on a number of occasions had putted together at commercial 'putt-putt' type courses both in Raleigh area and at the beach. My son was about four years old when I first exposed him to a golf putter. My son and I had played together on 'putt-putt' courses on a number of occasions and he had also played with his grandfather. On these occasions I had instructed my son on how to grip the club and tap the ball into the hole. My son understood that the kind of stroke to use with a putter was a short tapping stroke to roll the ball to the cup.

There were other people present at the 'putt-putt' courses at which we played.

I had further exposed my son to the use of a golf putter by putting with him in our house on the carpet. We putted into a device that would return the ball if the putt went into the hole. We had done this on numerous occasions and I had instructed him as to the correct method of putting, including the type of stroke and grip on the club. We normally putted a distance of seven or eight feet, using a short tapping stroke. We had also played together on the vacant lot prior to the date of the accident.

On June 21, 1970, we went to the lot after supper, about 7:15 or 7:30. My son had asked if we...