Ayers v. Atlantic Greyhound Corp.

• Decision Date: 11 April 1946
• Docket Number: 15827.
• Citation: 37 S.E.2d 737,208 S.C. 267
• Parties: AYERS v. ATLANTIC GREYHOUND CORPORATION et al.
• Court: South Carolina Supreme Court

37 S.E.2d 737

208 S.C. 267

AYERS v. ATLANTIC GREYHOUND CORPORATION et al.

No. 15827.

Supreme Court of South Carolina

April 11, 1946

N. A. Turner, of Columbia, and P. L. Felder, Jr. and Julian S. Wolfe, both of Orangeburg, for appellants.

T B. Bryant, Jr., and Zeigler & Brailsford, all of Orangeburg, for respondent.

STUKES Justice.

Respondent's inteestate went in a Pontiac sedan with his daughter, who drove, on November 24, 1944, from their farm home near Bowman, in Orangeburg County, to Winston- Salem, North Carolina. Returning, about halfway between Columbia and Orangeburg, around nine o'clock at night they crashed into the rear end of a parked passenger bus of the Atlantic Greyhound Corporation, with the tragic result of death to both occupants of the automobile. The action is under Lord Campbell's Act, Secs. 411, 412, of the Code of 1942. The appeal is from verdict and judgment for respondent.

The bus was loaded with passengers and on its regular route from Columbia to Charleston. The engine began to give trouble, would cut off, start upon cranking, and stop again, so the driver, the appellant Gardner, brought the bus to a stop on the pavement but very near the right edge. Beyond, there was an earth shoulder eleven feet wide. The paved portion of the road was twenty-two feet and on the opposite left the earth shoulder was thirteen feet in width.

Almost immediately there came along another bus of the Corporation, meeting the one in difficulty and enroute toward Columbia. The driver of it stopped momentarily opposite Gardner and inquired whether the latter was in trouble and upon affirmative answer he proceeded farther north and parked his bus on the shoulder of the road, entirely off the pavement, and at a distance which was variously estimated (from thirty feet up) by the witnesses, he said about two hundred and seventy-five feet, with headlights burning but 'dimmed'.

On this Columbia-bound bus there was a mechanic of the Corporation and he left it with the driver to assist with the disabled bus. The motor of the latter was at the rear and Gardner opened the compartment by use of the tool for that purpose so that the mechanic could get to the engine, which he did and began investigation. Thereupon Gardner returned to the driver's position in the bus in order to operate the starter, at the request of the mechanic. When the engine soon stopped again he proceeded for the first time to undertake to get from their storage place the flares or flambeaus to place them fore and aft the bus as a warning to traffic approaching from both directions. It was necessary in order to get them, to loosen two screws and Gardner had finished with one and was unscrewing the other when the collision occurred.

The disabled bus was parked in a depression in the road which partly, at least, obscured the vision of it from vehicles approaching, like decedent's automobile, over the crest behind it. The peak of the latter was variously stated in the testimony to be from three hundred feet to five hundred feet and more away. Several rear lights were burning on the bus, as were its interior lights.

Respondent relied upon several allegations of alleged wilful, wanton and reckless negligence, principally the delay of Gardner in putting out warning flares and his failure to park the disabled bus on the shoulder of the road, clear of his right-hand side of the pavement which constituted the ordinary path of decedent's car. 1942 Code, Sec. 1616(26)(a) and (b); and the rules regulating the operation of busses, 4 Code of 1942, p. 903, pars. 2.22, 2.23. Part of respondent's theory was also that the head and body lights of the parked Columbia-bound bus blinded or at least interfered with the vision of the driver of decedent's automobile. But the headlights were dimmed, that is they were deflected downward, as established and explained by the undisputed testimony. However, from one of the photographs in evidence, which was taken several months afterward under simulated conditions, it appears that these lights made a glare through which it was difficult, to say the least, for one to see clearly.

Appellants defended upon the ground of the alleged negligence and recklessness of the driver of the automobile in approaching the busses without any care and at high speed. At least one witness attempted to estimate the speed at which the Pontiac ran into the bus but he was observing from his seat in the Columbia-bound bus and his opinion covered such a wide range of possible rates of speed that the testimony was probably worth little. The destructive and disastrous effect of the collision and the particular fact that the motor of the bus was knocked loose from its fastenings and fell to the road were circumstances which indicated excessive speed, in contradiction of which an expert testified for respondent that the engine of the bus was so mounted that less than a heavy blow would dislodge it.

The bus drivers, the mechanic and several passengers and others testified from which the foregoing facts have been stated, but the narrative may not be as strongly worded in favor of, or against, the deceased driver as the evidence and the reasonable inferences from it warrant. But that is unimportant. The difficulty of determining whether the driver of the automobile should be held guilty under the testimony, as a matter of law, of recklessness or negligence is not now encountered for she or her estate or representative is not suing here. The action is in behalf of the beneficiaries of her guest and effort was not made in the testimony or briefs to impute her alleged negligence and recklessness to the deceased guest. Our problem is thereby simplified.

Appellants made timely motions for nonsuit, directed verdict in their favor and afterward for judgment non obstante veredicto and for new trial. The motions were, in turn, refused and the questions presented on appeal all concern alleged errors thereabout. Thus the appeal really presents the single question, Was the verdict in favor of respondent justified by the evidence? Or, stating it more precisely, for it is a law case in which the jury are the fact-finders, Was there evidence upon which the jury could reasonably find the facts implicit in their verdict for respondent?

Important in the consideration of the case is this: The answer (after general denial) alleged joint or common enterprise of the driver of the automobile and the deceased intestate but did not plead contributory negligence of the driver as a bar to respondent's action; instead the alleged contributory negligence of the deceased and the sole negligence of the driver were pleaded as defenses. But appellants' several motions contained no reference to joint enterprise or any plea of imputed negligence. This was proper for there was no evidence of control or activity of the deceased in the operation of the automobile in which he met death and an agreed amendment to the transcript of record establishes that respondent's intestate was a guest-passenger or companion. A surviving daughter gave the only testimony on the subject, as follows: 'My sister did not want to go by herself and since I could not go with her, my father rode up there.' In these circumstances the briefs appropriately contain nothing of the law of common enterprise and imputed negligence. And there was no evidence of acts or omissions of the decedent which constituted contributory negligence on the part of him, a guest and companion. Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742. See also, Crapse v. Southern R. Co., 201 S.C. 176, 21 S.E.2d 737.

Appellants are therefore restricted to rely upon a denial of negligence on their part and upon the sole negligence of the automobile driver. But there was enough even in the testimony of their witnesses for the jury to reasonably find them guilty of negligence, and the point need not be expounded in view of the statement of facts above. The evidence made it a question for the jury and by their verdict they answered its unfavorably to appellants.

But the latter go further in argument here and, in effect, grant their own negligence and contend that the negligence of the automobile driver was an intervening proximate cause of the collision and served to insulate their prior negligence, if any, from responsibility for the injury. Respondent meets them on this battleground and for the purpose of argument admits negligence in the operation of the automobile in...