Bolt v. Gibson, 16900

• Decision Date: 05 August 1954
• Docket Number: No. 16900,16900
• Citation: 225 S.C. 538,83 S.E.2d 191
• Court: South Carolina Supreme Court
• Parties: BOLT v. GIBSON et al.

Page 191

83 S.E.2d 191

225 S.C. 538

BOLT v. GIBSON et al.

No. 16900.

Supreme Court of South Carolina.

Aug. 5, 1954.

Leatherwood, Walker, Todd & Mann, Greenville, for appellants.

Hubert E. Nolin and Thomas A. Wofford, Greenville, for respondent.

J. FRANK EATMON, Acting Associate Judge.

Respondent instituted this action through her Guardian ad Litem to recover damages for alleged injuries that she received when the automobile in which she was riding at the time was struck from the rear by the appellant automobile which was being driven on such occasion by the appellant Gibson. Appellants filed an answer to respondent's complaint and alleged therein, among others, the defenses of contributory negligence and joint enterprise and imputed negligence. Thereafter the case was tried before the Hon. J. Robert Martin, Jr., Resident Judge of the Twelfth Circuit, with a jury. Upon completion of the testimony in the trial, Counsel for the respondent moved the Court to strike the allegations of the defenses mentioned on the theory that there was no testimony to support the same. Such motion was refused and the jury was instructed the law pertaining to said defenses. A verdict was rendered in favor of appellants whereupon counsel for respondent promptly made a motion for a new trial because of the alleged error of the Trial Judge in refusing to strike from the Answer, and charging the jury on the principles of law involved in the aforementioned defenses. In a very well considered Order, Judge Martin conceded that he had erred during the trial in the respects contended by respondent and directed a new trial in the case. Therefrom appellants timely perfected an Appeal to this Court.

Appellants in their Brief state only two questions as involved. First, 'Should the trial court have submitted the defense of contributory negligence to the jury?'

Before considering the stated question it appears desirable to correct an erroneous impression of appellants' counsel as indicated from the following quotation in their Brief: 'The trial judge held as matter of law there could be no contributory negligence on the part of the plaintiff in this case.' The whole tenor of Judge Martin's Order clearly refutes such assertion and on the contrary affirmatively shows that he considered the testimony in the record as ample to make an issue for the jury as to whether or not respondent was capable of negligence. The following quotation therefrom accurately demonstrates his holding on the point:

'A child from the age of six to fourteen years is presumed to be incapable of committing an act of negligence. However, this is a rebuttable presumption, and if there is any testimony from which a jury could reasonably conclude or infer that a child of this age was capable of committing an act of negligence, then that fact should be submitted to the jury for determination. In this case there was sufficient evidence to go to the jury on the question of whether or not the plaintiff, a schoolgirl of thirteen years, was capable of committing acts of negligence.' (Italics added).

We turn our attention again to the question stated above and quote further from Judge Martin's Order an appropriate and important statement, to wit: '* * *, the attorneys for the defendants (appellants) frankly admitted that there was no evidence in the record to show that the plaintiff (respondent) had committed any act of negligence of way of commission.' We need, therefore, to consider only whether the testimony will support the reasonable inference that respondent was guilty of contributory negligence on this occasion by any act of omission on her part. There can be no doubt but what one may be equally as guilty of contributory negligence by acts of omission as by acts of commission. And usually such is a mixed question of law and fact and is ordinarily for determination by the jury. But it is also true that when the evidence admits of but one reasonable inference, whether from all of the testimony considered together or from the lack of any evidence thereon, it becomes a matter of law for the determination of the Court. Gillespie v. Ford, 222 S.C. 46, 71 S.E.2d 596.

For understandable answer to the question here we must necessarily give rather detailed consideration to the testimony adduced in the trial. As analyzed from the record, the same establishes these salient and uncontradicted facts. Between 8:00 and 8:15 o'clock on the morning of December 4, 1950, Respondent, a minor of 13 years, along with her father and elder sister, was riding in an automobile en route from her home to school in the City of Greenville. Respondent's father, a prominent lawyer of that City, was operating the vehicle while her sister and respondent sat beside him on the front seat, the latter having been seated nearest the right front door. As they traveled along McDaniel Avenue in said City and approached the intersection of Ridgeland Drive therewith, they were compelled to stop near such intersection because of a red traffic signal light ahead. The vehicle was brought to a complete stop. Traffic was heavy and there was considerable rain falling at the time. There were several other automobiles in the same lane of traffic between the car wherein respondent was riding and the intersection, being variously estimated by different witnesses from 6 to 15. On the same occasion appellant Gibson was also traveling on McDaniel Avenue in his Plymouth automobile and following next to the Bolt car. While the vehicle in which respondent was riding had stopped near said intersection Gibson drove his automobile into the rear of the Bolt car with such force and violence that respondent sustained serious and severe injuries to her neck and shoulders from the impact.

Respondent's father also testified that after stopping at the intersection he ran his hand around the window (of his car) 'to see where the rain was coming in.' There is no further explanatory testimony on this point, so that it is impossible to say whether the window involved was in the front or rear of the automobile.

Although respondent's witnesses testified that the Bolt car stopped on only one occasion near the traffic signal mentioned, there was testimony by appellant Gibson that it made two stops and that the collision occurred on the second stop which was effected suddenly and without any warning. For the purpose of decision here it will be assumed that the Bolt car did make a second stop and that the collision occurred at that time because the appellant is entitled to have the testimony considered in the light most favorable to him.

It is argued by appellants' Counsel that there were three persons riding on the front seat of the automobile in which respondent was traveling; that the weather was bad and it was raining very hard causnig poor visibility; that traffic was exceedingly heavy and that the driver of the Bolt car was attempting to determine how the water was seeping into the vehicle when the collision occurred. From these alleged facts they reason that the jury could have concluded that while so engaged respondent's father put his car in motion in the heavy traffic and heavy rain without paying attention to what was happening in front of him; that, because of his attention to the water coming in and inattention to the traffic, when the traffic stopped in front of him, he applied his brakes quicker than was necessary or usual and consequently stopped with extreme suddenness so that Gibson was unable to avoid the collision. While frankly admitting that the record shows that respondent did nothing on this occasion, they contend that such circumstances made an issue for the jury to determine as to whether or not respondent used due care in failing a remonstrate with her father in not keeping a lookout under the extremely hazardous conditions existing at the time.

With the reasoning of appellants' Counsel we are unable to agree. It must be kept in mind that because of respondent's age, she being only 13 years, she is presumed to be incapable of negligence. And in no event does the law impose the same degree of care and caution upon a minor as a person of mature age. Hollman v. Atlantic Coast Line R. Co., 201 S.C. 308, 22 S.E.2d 892.

In the absence of any fact or circumstance indicating that the driver is incompetent or careless, an occupant of a motor vehicle is not required to anticipate negligence on the part of the driver. Thus in the absence of any facts or circumstances indicating the contrary, he need not anticipate that the driver, who has exclusive control and management of the vehicle, will enter a sphere of danger, will omit to exercise proper care to observe the approach of other vehicles, or fail to signal the approach of the vehicle which he is driving, or fail to keep the speed of the vehicle within proper limits, or otherwise improperly increase the common risks of travel. Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742, 749.

Thus in determining the issue here the testimony must be viewed in the light of the stated principles. There is nothing in the Record before us from which it might be reasonably inferred that the driver of the Bolt vehicle was not operating the same in a proper manner as he traveled from his home to the scene of the collision. That the traffic on this occasion was any heavier than on previous occasions when respondent had been driven to school by her father. Nothing from which it can be reasonably inferred that respondent had not safely traveled this same route with him on previous other occasions when it was raining or otherwise more hazardous than on this. Nothing from which it might be reasonably inferred that respondent saw or should have seen her father's attempt to ascertain how the water was seeping into the car. The only testimony on its point indicates that he merely passed his hand around the window of the vehicle and that this was a momentary act which respondent would not...