Augustine v. Christopoulo

• Decision Date: 26 March 1941
• Docket Number: 15235.
• Citation: 13 S.E.2d 918,196 S.C. 381
• Parties: AUGUSTINE v. CHRISTOPOULO et al.
• Court: South Carolina Supreme Court

13 S.E.2d 918

196 S.C. 381

AUGUSTINE v. CHRISTOPOULO et al.

No. 15235.

Supreme Court of South Carolina

March 26, 1941

S S. Seidemann and J. C. Long, both of Charleston, for appellant.

Hagood Rivers & Young, of Charleston, for respondent.

BAKER Justice.

This is an action arising under what is commonly known as the "Guest Statute", section 5908, Code of 1932.

The appellant alleges in his complaint that on August 7, 1938 while riding in an automobile, owned and operated by the respondent herein, at the invitation of respondent, and proceeding from the City of Charleston to Folly Beach, both in the County of Charleston and State of South Carolina, he was painfully, seriously and permanently injured; that the injuries sustained by him were due solely to and caused by the negligent, careless, reckless, heedless, wilful and wanton operation of the automobile in which he was riding there being five specifications or particulars set out, but when boiled down charge reckless operation of the automobile by respondent, and insufficient brakes on the automobile.As to the lack of good and sufficient brakes there is no testimony in the record.

The answer of respondent admitted that appellant on the occasion of his alleged injury was his guest in the car described in the complaint, but denied any negligence recklessness, wilfulness, wantonness, etc., in the operation of the automobile, and pleaded the protection afforded by Section 5908 of the Code.

During the trial of the caserespondent was permitted to amend his answer by setting up the further defense of contributory negligence and recklessness, from which ruling no appeal has been taken.

When appellant"rested his case,"respondent moved for a nonsuit on two grounds, the first, and the one upon which the trial Judge granted the motion, being as follows: "That the only reasonable inference to be drawn from all of the testimony is that, even if the defendant were negligent and grossly negligent, the plaintiff was also guilty of gross contributory negligence, which proximately caused the injury, in that he, according to his own testimony, knew that it was dangerous for him to continue to ride in the automobile of the defendant at the time of the collision, and although the automobile practically came to a stop at the toll gate, he made no request to get out of the car, but continued to ride, knowing of the danger."

In granting the motion, the Honorable W. H. Muller, Special Judge Presiding, stated: "In this case, according to the testimony, some five or six miles before the accident occurred, the plaintiff here claims that the party with whom he was riding was looking back and he complained of it.He does say that he told him to stop and let him get out, and the driver said 'No, I have brought you over before; we will get there all right.'He seems to have agreed to that statement by remaining in the car.They necessarily slowed down for the toll gate, and there is no indication that he made any attempt to get out there when the car was slowed up, and there is no testimony that he even asked the driver to let him get out.On the contrary, the plaintiff testified that he knew it was dangerous to ride with him, yet he made up his mind that he would go ahead and ride with him to the end of the journey.According to his own testimony, he agreed to assume the risks, agreed to ride, although he knew it to be dangerous.That being so, I don't think he could take the risk and then come in and ask a jury to hold somebody liable for what he apprehended fully.In my opinion, he was guilty of gross negligence."

The appeal is of course from the order granting the nonsuit, and appellant states the "Questions Involved" as follows:

"I.Did the Special Judge, *** err as a matter of law in granting the order of non-suit on the ground that the Plaintiff-Appellant was guilty of gross contributory negligence to such an extent as to bar his recovery in this action?"II.Is the question of contributory negligence of the Plaintiff in a personal injury action a question of fact which should be submitted to the jury?

"III.Can a motion for a non-suit be granted under the so-called 'Guest Statute' on the sole ground of the gross contributory negligence of the plaintiff?

"IV.Did the testimony in the present case warrant the Trial Judge holding as matter of law that the Plaintiff was guilty of gross contributory negligence to such an extent as to bar his recovery and to warrant the granting of the order of...