Ackerman v. One Mack Truck and Trailer

• Decision Date: 05 July 1939
• Docket Number: 14909.
• Citation: 3 S.E.2d 684,191 S.C. 74
• Parties: ACKERMAN v. ONE MACK TRUCK AND TRAILER et al.
• Court: South Carolina Supreme Court

3 S.E.2d 684

191 S.C. 74

ACKERMAN v. ONE MACK TRUCK AND TRAILER et al.

No. 14909.

Supreme Court of South Carolina

July 5, 1939

J D. Parler, of St. George, and Robinson & Robinson, of Columbia, for appellant.

Lide & Felder, of Orangeburg, and St. Clair Muckenfuss, of St George, for respondents.

FISHBURNE Justice.

The case is here on appeal from a verdict and judgment for the plaintiff for actual damages done to his person and to his automobile.

On December 12, 1937, between 5 and 6 o'clock in the afternoon, the plaintiff, while driving his automobile in Dorchester County on U. S. Highway No. 78, collided with one Mack Truck and Trailer, the property of the defendant C. G Fuller, as the result of which he received serious bodily injuries. He suffered three fractured ribs, his nose was broken, requiring ten or twelve stitches, and he sustained an injury to his right knee cap which disabled him from work for one or two months. His automobile, on which he owed a balance on the purchase price, was completely wrecked.

The defendant Fuller is a resident of Barnwell County, and the defendant Taylor is a resident of Jasper County.

Before the time for answering had expired, a motion was made by Fuller for an order transferring the entire case from Dorchester County, where the action was brought, to Barnwell County. The motion was granted only in part. The Court retained jurisdiction of the action in rem against the damage-feasant truck and trailer for trial in Dorchester County, and transferred the action in personam to Barnwell County. A trial was thereafter had in Dorchester County in the action in rem against the truck and trailer, resulting in a verdict in favor of the plaintiff for $2,750. Upon motion, the Court granted a new trial, unless the plaintiff should remit upon the record the sum of $1,250.

The first question to be considered is: Did the trial Court err in holding that the case as to the personal defendants be tried in Barnwell County, and the action in rem against the defendant truck be tried in Dorchester County?

In the case at bar, the accident occurred in Dorchester County, and the damage-feasant truck and trailer were attached in that county, and in our opinion the Court committed no error in retaining jurisdiction in Dorchester County of the action in rem against the truck and trailer, and in transferring to Barnwell County the action against the personal defendants.

The following cases fully support the ruling of the lower Court: Hall v. Locke, 118 S.C. 267, 110 S.E. 385; Williams v. Garlington, 131 S.C. 289, 127 S.E. 20; Mahon v. Burkett, 160 S.C. 48, 158 S.E. 141.

Nor do we think that error was committed in refusing to direct a verdict for the defendant truck.

It is contended that the only reasonable inference which can be drawn from all of the evidence in the case is that the injuries and damages suffered by the plaintiff were proximately caused by his own negligence or gross negligence in the operation of his automobile.

The plaintiff, Ackerman, collided with the truck and trailer near the end of a curve on the highway, at which point there was a large machine used in road construction work, called a latereau, which was parked on the left-hand side of the road. About 20 feet beyond this machine was the offending truck and trailer, stationary, from which was being unloaded a steam shovel. The latereau was 5 1/2 feet high, and 8 or 10 feet wide, and the plaintiff testified that it hid the truck and trailer from his view, and he said that the truck and trailer completely obstructed the highway. He was driving at a rate of speed of about 40 miles per hour, but...