Augustine v. Christopoulo, 15235.
| Court | United States State Supreme Court of South Carolina |
| Citation | 13 S.E.2d 918 |
| Docket Number | No. 15235.,15235. |
| Parties | AUGUSTINE. v. CHRISTOPOULO et al. |
| Decision Date | 26 March 1941 |
AUGUSTINE.
v.
CHRISTOPOULO et al.
No. 15235.
Supreme Court of South Carolina.
March 26, 1941.
[13 S.E.2d 919]
Appeal from Common Pleas Circuit Court of Charleston County; W. H. Mul-ler, Special Judge.
Action for personal injuries by John Augustine against Nick Christopoulo and one 1931 Hudson Sedan automobile bearing State of South Carolina License for 1938, No. D 10--057. From an order granting defendant's motion for a nonsuit, plaintiff appeals.
Affirmed.
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 case respondent was permitted to amend his answer by set ting 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...
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