Ellis v. Gillis

Court of Appeals of North Carolina

Ellis v. Gillis

193 S.E.2d 774, 17 N.C. App. 297, 1973 N.C. App. LEXIS 1342

CourtCourt of Appeals of North Carolina

DecidedJanuary 17, 1973

DocketNo. 7228SC804

StatusPublished

Cited by1 cases

This text of 193 S.E.2d 774 (Ellis v. Gillis) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ellis v. Gillis, 193 S.E.2d 774, 17 N.C. App. 297, 1973 N.C. App. LEXIS 1342 (N.C. Ct. App. 1973).

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Opinion

GRAHAM, Judge.

We hold that the trial court was correct in allowing the motion of defendant Stines for a directed verdict and therefore [298]*298do not consider the several procedural questions that have been raised in a motion by appellee to dismiss the appeal.

There is no evidence to support allegations in the complaint that defendant Stines was giving driving instructions to her daughter at the time of the accident, nor is there evidence of any other relationship which would permit the negligence of the daughter to be imputed to her mother. The evidence discloses that defendant Stines was simply a passenger in the automobile. In the case of Cox v. Shaw, 263 N.C. 361, 139 S.E. 2d 676, Justice Sharp quoted with approval from the case of Silverman v. Silverman, 145 Conn. 663, 145 A. 2d 826, to the effect, “ ‘[t]he negligence of a child is not imputed to a parent who does not control, or have the right and duty to exercise control of, the child’s conduct in the operation of a vehicle; . . . unless the parent owns the vehicle and has the child drive it for him; ... or the child was the agent of the parent in the operation of the vehicle at the time.’ ” Id. at 365, 139 S.E. 2d at 679.

While there is no allegation in the complaint charging defendant Stines with independent negligence, plaintiff now suggests that she negligently participated in the actual operation of the automobile. The only evidence to this effect is testimony by Stines that she took hold of the steering wheel and tried to steady the car when it went out of control and into a ditch after striking plaintiff. No inference of actionable negligence arises from this testimony.

Affirmed.

Judges Hedrick and Vaughn concur.

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GRAHAM, Judge.

We hold that the trial court was correct in allowing the motion of defendant Stines for a directed verdict and therefore [298]*298do not consider the several procedural questions that have been raised in a motion by appellee to dismiss the appeal.

There is no evidence to support allegations in the complaint that defendant Stines was giving driving instructions to her daughter at the time of the accident, nor is there evidence of any other relationship which would permit the negligence of the daughter to be imputed to her mother. The evidence discloses that defendant Stines was simply a passenger in the automobile. In the case of Cox v. Shaw, 263 N.C. 361, 139 S.E. 2d 676, Justice Sharp quoted with approval from the case of Silverman v. Silverman, 145 Conn. 663, 145 A. 2d 826, to the effect, “ ‘[t]he negligence of a child is not imputed to a parent who does not control, or have the right and duty to exercise control of, the child’s conduct in the operation of a vehicle; . . . unless the parent owns the vehicle and has the child drive it for him; ... or the child was the agent of the parent in the operation of the vehicle at the time.’ ” Id. at 365, 139 S.E. 2d at 679.

While there is no allegation in the complaint charging defendant Stines with independent negligence, plaintiff now suggests that she negligently participated in the actual operation of the automobile. The only evidence to this effect is testimony by Stines that she took hold of the steering wheel and tried to steady the car when it went out of control and into a ditch after striking plaintiff. No inference of actionable negligence arises from this testimony.

Affirmed.

Judges Hedrick and Vaughn concur.

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193 S.E.2d 774, 17 N.C. App. 297, 1973 N.C. App. LEXIS 1342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-gillis-ncctapp-1973.

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