The opinion
*59 OPINION AND ORDER ON PETITION TO REHEAR
Defendant-appellee has timely filed a Petition to Rehear complaining that this Court in its Opinion and Judgment gave no consideration to the binding effect of the jury verdict on the plaintiff-appellant, Terry Brown, father, in his individual claim for medical expenses and insisting that our failure to affirm the judgment below against Terry Brown constitutes an error in law and fact. Since in our original Opinion we failed to address directly this issue, we will do so at this time.
Defendant throughout this litigation has insisted that the plaintiff, Terry Brown, was guilty of contributory negligence in knowingly permitting his twelve year old son, Tim Brown, to ride as a guest passenger on a motorbike operated in violation of the statutory law of this State. The motorbike was not equipped with crash bars as required by T.C.A. 55-9-301, formerly T.C.A. 59-933. At the time of the accident neither the driver nor the minor plaintiff was wearing a crash helmet as required by T.C.A. 55-9-302, formerly T.C.A. 59-934. The driver, Richard Brown, was a fourteen year old resident of Chicago, Illinois, who was not a licensed operator pursuant to T.C.A. 55-7-104(g), formerly T.C.A. 59-704(g). While in Tennessee a fourteen year old is eligible to obtain a special restricted license or permit to operate a motorbike, Richard Brown had not done so.
It is uncontroverted that each of the above statutes was being violated at the time of the accident, and it is clear that Terry Brown by the exercise of reasonable diligence would have been aware of each violation at the time he permitted his minor son to ride the motorbike as a guest passenger. However, there is no material evidence in the record from which the jury could have found that the violation of any one of these statutes was a proximate cause of the accident or injury. There was no proof as to where crash bars would have been located had the motorbike been so equipped or as to how crash bars might have provided protection to the injured left leg of Tim Brown under the particular circumstances of this accident. Since neither of the boys sustained a head injury, it does not appear that the failure to wear crash helmets was material. There was no proof that Richard Brown was other than a competent and qualified driver, although unlicensed.
The applicable rule was concisely stated by the Eastern Section of this Court in the ease of Chattanooga Ice Delivery Co. v. George F. Burnett Co., 24 Tenn.App. 535 , 147 S.W.2d 750 (Tenn.App.1940, cert. den. 1941) as follows:
It is not every violation of a statute that renders a person guilty of such contributory negligence as will bar his recovery on account of the negligence of another party. It is only when such violation of a statute is the proximate cause of the accident or injury that the party so offending is guilty of contributory negligence as a matter of law so as to bar his action, (cases cited)
Beyond the aforementioned statutory violations, a thorough review of the record discloses no material evidence which would support a finding of proximate contributory negligence on the part of Terry Brown, individually. It is not suggested that the driver, Richard Brown, half-brother of Terry Brown, was an immature or irresponsible person, or that he had been driving the motorbike in a reckless manner. Further, there is no proof that the motorbike was not in good condition or not adequately constructed or equipped to carry two riders.
For the foregoing reasons we find no error in law or fact in our reversal of the judgment of the Trial Court as to both plaintiffs and the remanding of the case for a new trial as to all parties. Therefore, defendant’s Petition to Rehear is denied at his cost.
MATHERNE and NEARN, JJ., concur.